Family Violence and Child Protection
Contents
Child protection issues
Child protection issues are handled under different legislation from family law matters. The child protection laws in BC are contained in the provincial Child, Family and Community Service Act (CFCSA) and its regulations, as well as the Provincial Court (Child, Family and Community Service Act) Rules, and child protection matters are dealt with in the BC Provincial Court, not the BC Supreme Court.
Child protection involves a government authority stepping in. Unlike normal family law matters where two former spouses make decisions about how to proceed with family law case, it's the provincial Ministry of Children and Family Development (MCFD) or an Indigenous authority that is taking steps in a child protection matter to protect children from abuse, neglect, and harm or threat of harm. Once they step in, these authorities have a duty to make decisions, including possibly seeking court orders, that ensure the safety and well-being of the children. In J.P. v. British Columbia (Children and Family Development), 2017 BCCA 308 the Court of Appeal made it clear that the MCFD can seek Provincial Court orders in a child protection case that conflict with existing family orders, including from the Supreme Court order, because the MCFD has to meet its legal obligations and duties "regardless of the nature of the dispute between the parents in the family proceeding". The CFCSA, and not the Family Law Act or the Divorce Act, directs how child protection matters are handled. As a side note, the CFCSA still uses the terms custody and access even though family law legislation has moved to the terms guardianship, parenting time, and contact with children.
Section 2 of the CFCSA sets out the guiding principles for child protection matters:
This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles:
(a) children are entitled to be protected from abuse, neglect and harm or threat of harm;
(b) a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents;
(b.1) Indigenous families and Indigenous communities share responsibility for the upbringing and well-being of Indigenous children;
(c) if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided;
(d) the child's views should be taken into account when decisions relating to a child are made;
(e) kinship ties and a child's attachment to the extended family should be preserved if possible;
(f) Indigenous children are entitled to
(i) learn about and practise their Indigenous traditions, customs and languages, and
(ii) belong to their Indigenous communities;
(g) decisions relating to children should be made and implemented in a timely manner.
Unlike the legislation in family law, the best interests of the children is not the most important consideration under the CFCSA. The most important considerations under the CFCSA are the "safety and well-being of the children".
The first principle is that children are entitled to be protected from abuse, neglect, harm, or the threat of harm. Most of the other principles center around keeping the child with or connected to their family if possible. These principles state that a child's family is the preferred environment their care and upbringing, that the responsibility for protecting children rests primarily with the parents, and that kinship ties and a child's attachment to extended family should be preserved if possible. The principles also say that if a family can provide a safe and nurturing environment for a child with available support services, then those support services should be provided.
This chapter includes information specific to Indigenous parents and children.
Reporting a protection concern to MCFD or an Indigenous authority
Section 14 of the CFCSA says that any adult who has reason to believe a child needs protection must report the protection concern to MCFD. Only lawyers in a solicitor-client relationship are exempt from this duty to report. It is an offence not to report a protection concern to MCFD. In other words, anyone who thinks a child needs to be protected from abuse, neglect, harm, or the threat of harm, must report the problem to the MCFD.
In the case of Indigenous children, the CFCSA says that if a person has reported the protection concern to an Indigenous authority, then the person is not required to report the protection concern to MCFD if the Indigenous authority confirms it will assess the report. An Indigenous authority is one that is authorized by an Indigenous governing body to provide child and family services according to Indigenous law.
Once they receive a report, the MCFD must assess it and determine whether an investigation by a social worker is necessary. The CFCSA gives the social worker fairly broad authority to investigate the alleged problem and determine if the child is in need of protection.
Protection concerns
What will trigger the MCFD or an Indigenous authority to determine that a child needs protection? Section 13 of the CFCSA contains the specific language, but essentially a child will be deemed to require protection if the child has been or may be:
- physically harmed by a parent
- sexually abused or exploited by a parent
- harmed, sexually abused, or exploited by another person, and the parent can't or won't protect the child
- physically harmed due to parental neglect
Protection will also be required if:
- the child is emotionally harmed by a parent's conduct or by living in a situation with domestic violence
- the child lacks necessary health care
- the child's development may be seriously impaired by a treatable condition, and the parent refuses to allow treatment
- the parent can't or won't care for the child and hasn't made adequate arrangements for care
- the child has been in a situation that endangers their safety or well-being
- the child's parent is dead and no adequate provision has been made for care
- the child has been abandoned without adequate care
- the child is in the care of a director or someone else by agreement, and the parent won't or can't resume care when the agreement ends
Section 13 of the CFCSA also clarifies that:
- sexual abuse or exploitation includes being encouraged or coerced into prostitution
- the likelihood of physical harm increases when the child is living in a situation with domestic violence
- emotional harm means the child shows severe anxiety, depression, withdrawal, self-destructive or aggressive behaviour
- A child does not need protection solely due to socioeconomic conditions like poverty, lack of housing, or a parent's health condition.
Domestic violence as a protection concern
The CFCSA uses the term domestic violence for one of its categories of protection concerns. MCFD has acknowledged in their Policy on Best Practice Approaches: Child Protection and Violence Against Women that women and children are disproportionately impacted by domestic violence. MCFD policies around the issue of violence against women are aimed at:
- keeping mothers safe by connecting the child's safety to the mother's safety whenever possible
- keeping children with the non-abusive parent
- providing the non-abusive parent with supportive services so they can safely care for the child
- preventing further violence
- offering an integrated approach for meeting a child's safety needs
- providing supportive services to the non-abusive parent, and
- keeping their safety a parallel consideration through MCFD proceedings.
If a non-abusive parent, usually the mother, is concerned that the other parent may commit violence, they should prioritize their safety and the safety of their children. As outlined at the beginning of this chapter, if the non-abusive parent is in immediate danger they can call 911. The non-abusive parent can also contact VictimLINK at 1-800-563-0808 to access safety planning resources. The non-abusive parent also has an obligation to report the child protection concern to MCFD. In any of these cases, it is critical to obtain legal advice as soon as possible about options available.
The child protection process
Legal Aid BC has helpful factsheets and information about the child protection process. See the Resources and Links heading under this section.
If you are reported to MCFD or an Indigenous authority
A parent may be reported to MCFD or an Indigenous authority because of a protection concern.
If the concern involves an Indigenous child, the local Indigenous authority may conduct its investigation under Indigenous law, customs, and traditions.
Legal help for reported parents
It is critical for parents who are reported for a protection concern to get legal advice as soon as possible. Getting legal advice about your rights with MCFD early in the process is important, but obtaining that advice for the later stages of the investigation is even more critical.
You can contact Legal Aid BC to find out if you qualify for a free lawyer. Contact your local Parents Legal Centre at 1-888-522-2752 (1-888-LABC-PLC), or find a lawyer who represents parents in child protection proceedings. If Legal Aid BC determines you are not eligible for a lawyer for your child protection matter, you may be able to apply to the courts and ask that a lawyer be appointed to represent you. This request for lawyer representation is called a JG application.
When a court considers a JG applications it decides whether or not to appoint a lawyer for someone who was denied legal aid, but is facing a complicated child protection hearing and cannot afford a lawyer. You can find the necessary forms and application materials for a JG application on the Legal Aid BC website. The person applying must be found to be indigent in order to succeed in their application. Being found to be indigent is not limited to rare or exceptional cases, but it does depend on the financial and other circumstances of the person applying.
Child protection investigations
A social worker's first step when starting an investigation is usually to contact the person who is the subject of the report. They may decide to visit the child's home, interview one or both parents, and interview the child. They may also ask the parent for collaterals, which are people the parent knows who can vouch for their parenting abilities. These collaterals could be the child's family doctor, teachers, daycare providers, counsellors, family members, and other relatives. The social worker may reach out and contact some or all of these collaterals in the course of their investigation.
At the end of the investigation, the social worker might conclude that there is:
- No concern: the social worker may close the file due to a lack of protection concerns, and give you a letter outlining this conclusion, which you should keep in a safe place.
- Low concern: the social worker may start with a lower level of intervention, including providing support services to the family in the home and making referrals to outside social agencies.
- High concern: the social worker may be concerned enough to take more control by supervising the parent's care of the child, starting a court proceedings, or removing the child.
If the social worker concludes that there is a protection concern, you should contact a lawyer immediately to learn more about your rights.
What happens if a protection concern is found?
If the social worker investigating the report is sufficiently concerned about the child's living conditions, a risk of harm, or the reported parent's unwillingness to cooperate with MCFD, then they may take further actions such as:
- supervise the parent’s care of the child with various terms and conditions that one or both parents must follow,
- begin court proceedings, or
- remove the child temporarily or permanently from the parent’s care and place the child temporarily or permanently with relatives, a foster family, or a group home.
If MCFD has taken a child out of the parent's care, they must commence a child protection action in court and seek a court order approving the removal. They need to serve the parent with court documents. All child protection proceedings are held in the BC Provincial Court and follow special rules called the Provincial Court (Child, Family and Community Service Act) Rules.
- It is critical to get legal advice about your legal rights in relation to MCFD as early in the process as possible, and this becomes more important as the investigation goes on.
- If your child is removed, the Child Protection and Removal script from People's Law School's Dial-a-Law website talks about parents' legal rights and explains steps you can take.
- Legal Aid BC's illustrated booklet Parents' Rights, Kids' Rights: A Parent's Guide to Child Protection Law in BC outlines the child protection process.
Orders for supervision
The MCFD may ask the court to make a protective intervention order for:
- the on-going supervision of the child, including conditions like daycare, services for the parent, and the right of the ministry to visit the child in the home,
- prohibiting a person from contacting, interfering with, or living with the child, or entering the child's home,
- requiring the police to enforce the order, and
- the removal of the child if the parent fails to comply with the terms of a supervision order.
Orders for child removal
Where protection concerns are more serious, the MCFD may immediately remove the child from the home and set a presentation hearing within seven days to have the court review that decision. At the presentation hearing the court may order that the:
- MCFD have temporary custody of your child,
- child be returned to you under the supervision of the MCFD,
- child be returned to you, or
- child be placed in the care of someone other than yourself.
To learn about the rest of the process and the other hearings involved when the MCFD intervenes to remove a child, read Legal Aid BC's booklet Parents' Rights, Kids' Rights: A Parent's Guide to Child Protection Law in BC
The Indigenous child protection process
In 2022, the CFCSA was amended to better respect the inherent rights of Indigenous communities to provide their own child and family services, and to keep Indigenous children safely connected to their cultures and communities.
The guiding principles in section 2 of the CFCSA include two provisions that are specific to Indigenous families. First, the CFCSA recognizes that Indigenous families and their communities share responsibility for the upbringing and well-being of their children. Second, the CFCSA states that Indigenous children are entitled to learn about and practice their traditions, customs, and languages and belong to their Indigenous communities.
The child protection process in BC has a separate process for Indigenous children. Reported protection concerns can be investigated by an Indigenous authority in accordance with that community’s Indigenous law, customs, and traditions. In these cases, the MCFD is not the authority dealing with Indigenous children. Note that in older versions of the CFCSA, Indigenous peoples were categorized under the term “Aboriginal”, so you may still see that term in some child protection publications in BC, as well as online.
If you or your child is Indigenous, and you have been reported to MCFD or are otherwise involved with MCFD, Legal Aid BC has published comprehensive information. Find the Legal Aid BC materials under the Resources and Links under this section, or visit the Aboriginal Legal Aid in BC website pages on child protection.
If you are reported to MCFD or an Indigenous authority, MCFD might decide they are concerned enough to supervise the parent’s care of the child, start court proceedings, or remove the child.
If this happens, you should contact a lawyer immediately to learn more about your rights.
If the investigating social worker comes to the conclusion that there is a problem, they can do a number of things to protect the child or attempt to solve the problem. These include:
- providing support services to the family in the home, including referrals to outside social agencies,
- supervising the child's care in the home, including random unannounced visits by the worker, or
- removing the child from the home and placing the child temporarily or permanently with relatives, a foster family, or a group home.
Of course, removing the child from the home is the most extreme step the worker can take, and is normally only used as a last resort.
Information for reported parents
Sometimes, in the middle of a nasty family law dispute, one parent will report the other to the ministry, and claim that the child is suffering in the care of the other parent. Surprisingly, these claims often involve allegations of sexual abuse. Not surprisingly, many of these claims are unfounded.
Whether the complaint is justified or not, you must cooperate with the social worker who investigates the report. Obviously, you'll want to prove that there's no justification for the report, and it may help you to refer the worker to the child's family doctor, teachers, and daycare providers who can say that the child isn't at risk and hasn't been abused.
You cannot take any action against a person who has made a false complaint, such as suing them for damages, unless that person made a false report knowing it to be untrue.
Once the social worker has concluded that there is a problem, there's very little you can do to get the worker out of your hair except to do what they want. It is critical that you comply with their suggestions about things like parenting courses, help from outside agencies, homemaking services, and so forth. If you don't do the things the worker suggests, you may be flagged as resistant to those remedies. This can trigger an escalation in the worker's involvement in your family and can lead to harsher conditions being imposed, such as the removal of your child.
The impact of a report to the ministry on your family law action will obviously depend on the circumstances and whether the investigation shows that there is actually a problem in your home. The simple fact that a report has been made will not give the other parent grounds to apply for a change in the child's residence; in fact, if the other parent reported you to the ministry and there was no substance to the claim, it may stand as further evidence of the other parent's unwillingness to cooperate with you in raising your child.
Information for parents making a report
Unless you are fairly certain that your child is being harmed by the other parent or stands in real risk of being harmed, you should not make a report to the ministry. There are a few reasons for this.
Firstly, there is no guarantee that if the worker removes the child from the care of the other parent, that you will get custody of the child. The worker may well discover problems in your own household and give the child into the care of someone else altogether.
Secondly, you run the risk of giving the other parent more ammunition in your family law dispute, allowing them to characterize you as mean-spirited and vindictive, and willing to stoop to anything to win. Worse, the other parent may be able to claim that you were using the ministry to make an end-run around the court process.
Thirdly, you run the risk of inviting the ministry's continued interest (and interference) in your family. Nothing is as unpleasant as being subject to random, unannounced visits by a social worker whose job is to critique your parenting abilities and the child's home environment.
What happens if a problem is found
If the worker investigating the report is sufficiently concerned about the child's living conditions and risk of harm, or the reported parent's willingness to cooperate with the ministry, the ministry may begin court proceedings.
If the ministry has taken a child out of the parents's care, the ministry must commence a child protection action and seek a court order approving the removal. All child protection proceedings are held in the Provincial Court, and are run under special rules of court, the Provincial Court (Child, Family and Community Service Act) Rules.
When your child is not removed
Among other things, the court can make, at the request of the ministry, protective intervention orders for the following relief:
- the on-going supervision of the child,
- the on-going supervision of the child on conditions, including things like daycare, services for the parent, and the right of the ministry to visit the child in the home,
- prohibiting a person from contacting and interfering with the child,
- prohibiting a person from living with the child or entering the child's home,
- a term requiring the police to enforce the order, and
- the removal of the child if the parent fails to comply with the terms of a supervision order.
The ministry must serve you with notice of the hearing of their application, and you are entitled to attend court and oppose the application. You may call witnesses and present other evidence against the ministry's application.
You are not required to have a lawyer at this hearing, although the help of a lawyer is strongly recommended.
When your child is removed
If the ministry has removed a child from your care, the ministry is required to set a presentation hearing within seven days, at which the ministry's action is either confirmed or overruled. The issue at this hearing is whether or not the child was in need of protection and was properly removed from the home. You will be served with notice of the presentation hearing and you may attend the hearing where you will be allowed to address the court and call evidence in support of your position.
At the presentation hearing, the court may make interim orders for the following:
- that the ministry have custody of your child,
- that the child be returned to you under the supervision of the ministry,
- that the child be returned to you, or
- that the child be placed in the care of someone other than yourself.
It is important to know that at a presentation hearing the ministry only has to show that there is a likelihood that the child was in need of protection to succeed and get an order that the child continue to live in their care. It can be very difficult to get your child back at a presentation hearing since the case the ministry must prove is so slight.
Within 45 days of the presentation hearing, assuming the ministry was successful at that hearing, a protection hearing is held. At this hearing the court may direct the parties (you and the ministry) to attend a case conference, if you and the ministry cannot agree on the terms of the order that the court should make at the beginning of the hearing.
A case conference is a relatively informal meeting between you, the ministry's representative, and the judge. Sometimes the social worker also attends. If you and the ministry cannot negotiate and agree on the terms of an order about your child during the case conference, the judge may make some directions about the conduct of the proceeding, such as the exchange of information and the scheduling of dates, and set a date for the continuation of the protection hearing.
A protection hearing is a formal hearing before the judge. The ministry will attempt to prove that the order they seek is necessary, and will call witnesses, such as relatives, teachers, and social workers, to give evidence about the facts of the case. Since this is a formal hearing, you are allowed to cross-examine the ministry's witnesses. You will then be able to present your own case and argue about why the ministry's request is not justified.
Remember that at the presentation hearing, the ministry only has to prove that there is a likelihood that the child is at risk and that the course of action sought by the ministry is reasonable. At the protection hearing, however, the ministry must prove that it is more probable than not that the child is at risk and that the course of action sought by the ministry is reasonable. This is a lot more difficult to prove than a mere likelihood of risk.
At the protection hearing, the court may make orders for the following relief:
- that the child be returned to you under the supervision of the ministry for a period of up to six months,
- that the child be placed in someone else's custody for a specific period of time,
- that the child be placed in the custody of the ministry for a specific period of time, or
- that the child continue to be in the custody of the ministry.
Again, while you are not required to have a lawyer at this hearing, the help of one is strongly recommended.
At the conclusion of the period of time specified in the court order, the status of your child will normally be reviewed. It may be critical that you use the intervening period of time to comply with any directions made by the court or recommendations of the ministry about things such as special courses, programs, or services that you should take, since the court will be looking to see whether the risks or deficiencies that caused the child to be removed are still there. If nothing has changed, the terms of the order will likely be continued.
To find out more about your rights when the ministry has concerns about a child's safety or plans to remove a child from the family home, you may wish to read the booklet Parents' Rights, Kids' Rights: A Parent's Guide to Child Protection Law in BC.
Resources and links
Legislation
Resources
- Legal Aid BC's Family Law website's information pages on Child Protection
- Legal Aid BC's Aboriginal Legal Aid in BC website
- Legal Aid BC's forms and self-help guide If You Can't Get Legal Aid for Your Child Protection Case
- Find a Parents Legal Centre on Clicklaw
- Legal Aid BC's Family Law website's information page on Child protection
- Legal Aid BC's booklet Parents' Rights, Kids' Rights: A Parent's Guide to Child Protection Law in BC
Links
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Fiona Beveridge and Samantha Simpson, April 30, 2019. |
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 JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.
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