Child Protection Law

This section of the resource provides information on:

Why child protection law is important to women experiencing violence

It’s important for VAW service staff to have an understanding of child protection law because workers need to help women with children who are experiencing violence understand how child protection laws work and how these laws might affect them and their child/children. By understanding the child welfare system in their province or territory, VAW support workers can help women deal with that system, advocate on their behalf, and assist them in seeking legal advice. In this way, VAW support workers have a different role to play than a child protection social worker, whose focus is solely the child and who ultimately has the power to remove a child.

It is also important for VAW support workers to understand how the child protection response to domestic violence presents barriers for women. It may make women reluctant to seek help because they fear losing their children; and it may re-victimize them by appearing to make them responsible, rather than the violent spouse. With this understanding, VAW support workers are better equipped to support and advocate for their clients.

Finally, child protection law is important to women experiencing violence because child protection laws recognize that it is harmful for children to witness violence, especially if the violence is severe or prolonged. A child protection agency can remove a child from a home where a child is exposed to violence, even if the violence is not directed at the child.

The next section provides general information about child protection law and suggests specific ways in which VAW support workers can support women at different stages in the child protection process.

What is child protection law?

Best Interests of the Child

“The Best Interests of the Child” is one of the most important principles in child protection and family law. The “best interests of the child” are defined in a number of provincial and federal laws. In the child protection context, the “best interests of the child” include:

  • the child’s physical and emotional safety and needs
  • cultural, spiritual, linguistic and religious ties
  • the importance of a positive relationship with the parent(s) and other family members
  • a stable environment
  • continuity in the child’s care
  • the child’s wishes (if they can be reasonably ascertained)
  • minimal disruption as a result of child protection involvement.

Every province and territory in Canada has laws to protect children from neglect and abuse. These are called Child Protection Laws.

Child welfare agencies, often called “child and family services” or “children’s aid societies”, are given responsibility to protect children. This responsibility is set out in child protection laws.

In some provinces and territories there are Aboriginal child welfare agencies to better ensure that child protection is culturally appropriate and that the child protection system is administered by and for Aboriginal peoples. See The Role of Aboriginal Communities in Aboriginal Child Welfare below.

What do Child Protection Agencies do?

Child protection agencies investigate reports of abuse. If the agency determines that a child is “in need of protection”, the agency may do a number of things, from counseling and support to the family to removing the child from the home. Removal of the child from the home is referred to as “apprehension”.

In every case where the agency determines that a child is in need of protection, it must consider the “best interests of the child” in deciding what to do.As defined in child protection legislation, the term “child in need of protection”, is used to refer to harm or risks of harm that, if there is reason to believe they are present, give the child protection agency legal authority to step into a family to protect a child.

Best Interests of First Nations, Métis and Inuit Children

The traumatic intergenerational impacts of the long history of First Nations, Métis and Inuit children being removed from their homes and communities, through Residential Schools, the Sixties scoop of children adopted into Euro-Canadian and American families and child protection policies means that in the present day, child protection agencies and judges should, as much as possible, keep children in their home communities and families to maintain and strengthen linguistic, cultural, familial and communal ties.

The exact definition of a “child in need of protection” is different in each province and territory, but, in general, a child can be considered to be in need of protection if the child:

  • has been, or is at risk of being, physically, sexually or emotionally abused, whether by the parent or someone else and the parent failed to take steps to protect the child
  • is abandoned
  • is neglected; for example, malnourished or unsupervised in a way that puts the child in danger
  • has been exposed or is at risk of being exposed to pornography
  • is self-harming or threatening self-harm, is seriously depressed, anxious or using drugs or alcohol and the parent is not getting treatment for the child.

The Role of Aboriginal Communities in Aboriginal Child Welfare

Prior to European colonization, First Nations, Métis and Inuit peoples had effectively cared for their own children based on their traditional culture and knowledge. One of the ways that the Canadian government tried to assimilate Aboriginal peoples was by implementing laws that resulted in Aboriginal children being removed from their homes and communities. From the 1960s through to the mid-1980s, child welfare authorities used existing child welfare legislation to remove thousands of Aboriginal children from their homes and communities and place them in non-Aboriginal foster or adoptive families. Aboriginal communities refer to this as the “Sixties Scoop”. Due to protest from Aboriginal communities, new legislation was introduced in the mid-1980’s that recognized the right of Aboriginal communities to provide their own child protection services whenever possible. The law also mandated that Aboriginal children in need of protection should remain in the community, and that if the child was to be adopted, the band or community should be notified and have a right to be heard in any court proceedings.

Alberta:

Indian and native people should be entitled to provide, whenever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognized their culture, heritage and traditions and the concept of extended family.

Child and Family Services Act
Ontario

In Alberta, most First Nation families living on reserves receive services through delegated First Nations agencies. First Nations people living off reserves receive services through the agency in their region. There is also an office that provides services to Métis families who are affiliated with the Métis Settlements in Alberta. The Alberta Child, Youth and Family Enhancement Act requires that an Aboriginal child’s band be involved in placement and adoption decisions, and that if a child is to be adopted, there is a plan indicating how the child’s Aboriginal identity will be preserved.

Manitoba:

Manitoba has four child welfare authorities, three Aboriginal and one general. Two are First Nations Authorities, one for the northern and one for the southern part of the province. The Métis Authority covers the whole province. These authorities can create and mandate child welfare agencies. They supervise the operations of the child and family service agencies under their jurisdiction, both on and off reserve, including disbursing funds and ensuring culturally appropriate practices. Under the Manitoba legislation First Nations bands are given notice of proceedings where an “Indian” child is in need of protection.

Northwest Territories:

The NWT does not currently have a separate child and family services program for the Aboriginal population or receive specific federal funding for separate Aboriginal child and family service agencies. In the case of an application for a child protection court order involving an Aboriginal child the Child and Family Services Act requires that the child’s Aboriginal community be notified. Custom adoptions between two Aboriginal families are possible under the Aboriginal Custom Adoption Recognition Act (ACARA). These do not require the involvement of social workers or lawyers.

Nunavut:

The majority of Nunavut’s population is Inuit. Child and family services are provided by the territorial government, and there is no separate system or federal funding for Aboriginal agencies. Certain incorporated Aboriginal community organizations can enter into an agreement with the territorial government to form a Child and Family Services Committee. These are volunteer committees (Plan of Care Committees) that participate in the case planning for Aboriginal children and families and which may include elders and other persons who can support the woman and child). As in NWT, custom adoptions are also possible under the Aboriginal Custom Adoption Recognition Act (ACARA). This allows for a private arrangement between two Aboriginal families, without social workers or lawyers being involved.

Ontario:

Ontario has five First Nations child and family agencies which operate on reserve, and one urban Aboriginal agency. These six organizations are fully mandated to provide all the services of a child welfare agency. Ontario’s Child and Family Services Act requires that if a child is “Indian or native” the child’s band or native community must be notified if the child is being assessed by a child welfare agency or if child protection or adoption proceedings are to be undertaken.

Saskatchewan:

Most First Nations families living on reserves in Saskatchewan receive services through delegated First Nations agencies. First Nations people living off reserves receive intervention services through the province. In a situation involving any court procedures for a child who is a status Indian under the Indian Act, notification must be given to the band that the child belongs to.

Source: Canadian Child Welfare Research Portal, Provincial & Territorial Information Sheets

Child Protection Law and Violence Against Women

In the locations where the Building Service Capacity trainings were held, we heard that intimate partner violence was rarely the sole reason for child welfare involvement or apprehension.

Intergenerational trauma, grief, poverty, overcrowding and inadequate housing, substance abuse and mental health issues, as well as violence, all contributed to the reasons for child welfare involvement. In the trainings, the critical need for in-community mental health and other forms of counseling and support services for men, women, children and families-as-a-whole was repeatedly identified.

Exposure to domestic violence is harmful to children. Accordingly, a child may be considered to be “in need of protection” if she has witnessed domestic violence, regardless of who has committed the violence. This child protection response to domestic violence presents barriers to women including:

  • Making women reluctant to reach out for services because they are afraid of losing their kids
  • Reinforcing women’s beliefs that they are responsible for their spouse’s violence
  • Re-victimizing women by appearing to focus responsibility on them, rather than the violent spouse
  • Failing to respect the choices women make in their own and their children’s best interests by requiring them to leave an abusive spouse, even though a woman may have decided to stay with an abuser because:
    • she has nowhere else to live
    • she has no other income or means of support for herself and/or her children
    • she has reason to believe that the abuser will be more dangerous and violent if she leaves.

The Role of the Child Protection Social Worker

It is important for women to understand that the paramount objective of child protection legislation is the safety and well-being of children.This is important to understand since sometimes women think that the child protection social worker is “their” social worker or even their friend. This is not the case. While child welfare agencies work to support families and keep children with their mothers, ultimately their statutory—legal—obligation is to protect the child. This puts social workers in the uncomfortable position of building a trust relationship with a mother while at the same time holding the power to take the child or children away.

Child Protection Planning and Safety Planning

Safety planning includes a child protection strategy. If the police or neighbor calls child welfare, particularly in an emergency, the woman should have thought in advance about: What are her plans for her children? Does she have a list of family members and friends or other support persons with whom she could live or send her children, along with their contact information? Does she have this information handy for emergencies when she might call the police/RCMP?

The assistance that the social worker can provide to mothers and families may be limited, particularly in communities where health and other social services are unavailable or extremely scarce. Lack of access to services is one of the factors which may lead to apprehension, rather than family services and support.

The Role of VAW Service Staff

VAW service staff, community advocates and the women they work with, should understand the roles of the social worker.

It’s important to understand the inherent tension in the social worker’s role: between the social worker as support-person and social worker as the government representative who may apprehend a child.

This power imbalance can make the role of VAW service staff very important in supporting women in the child protection context. Unlike the child protection social worker, you can be “there” for the mother. You can:

  • help her tell her story
  • include planning for a meeting with child welfare as part of safety planning
  • assist her in highlighting her strengths and sources of support
  • help ensure that she understands the child welfare process
  • help ensure that she understands what is being asked of her by the agency
  • help ensure that she doesn’t agree to terms or conditions to keep her child that are unrealistic or that she cannot fulfill
  • help her speak up for herself, including by saying “I don’t understand” or “I need to think about this”
  • assist her in calming down and feeling supported
  • connect her to a lawyer as soon as possible

The Importance of Legal Advice As Early As Possible

Because of the very serious potential consequences of a child welfare investigation—removal of the child—it is recommended that women seek legal advice and representation:

  • as soon as possible once the child protection agency investigates
  • before the woman signs anything
  • immediately following apprehension of a child

In some provinces and territories women can access a legal aid lawyer for help before signing or agreeing to any conditions to avoid apprehension (sometimes called a “Plan of Care”). In other provinces a woman is entitled to legal aid only after a child is apprehended and Court documents are served. Even where there is no entitlement to representation before apprehension, legal aid offices will sometimes provide summary advice over the phone.

Some Key Concepts in Child Protection Law

These are the key concepts in Child Protection Law. They are discussed throughout this section.

Steps in the child protection process

A flowchart outlining the following steps involved in child protection process is available at this link: Child Protection Flowchart.

  1. Report to the agency
  2. Screening and investigation
  3. Plan of care
  4. Apprehension
  5. Court appearances
  6. Return of child or temporary or permanent order

1. Report is Made to the Agency

The Duty to Report: Child protection laws say that every person who has reason to believe that a child is a victim of abuse or neglect “must” report these concerns to the child protection agency. The law makes reporting mandatory. This is called the “Duty to Report”.

Professionals, such as teachers, health care providers, social workers and daycare workers, can be fined for failing to report.

In cases of family violence, the report to the child protection agency is often made by the police, health care providers, neighbors or witnesses to the violence and abuse in the home.

A report to a child protection agency is usually not required where a woman has taken steps to protect her children from exposure to violence in the home, such as by going to a shelter, calling the police, or staying with a friend or family member when she knows violence is likely.

Women sometimes feel betrayed, hurt or angry that child protection is called. It is important for women to understand the obligation that the law puts on others to report.

2. Investigation by the Agency

The law also requires child protection agencies to respond to reports. An investigation in response to a report may mean:

  • The agency may do an initial screening and decide that the child is not at risk and it doesn’t need to take any further steps.
  • The agency may investigate to determine whether the child is in need of protection. The investigation may include speaking to the children (alone, without telling the mother first), speaking to the mother, father, other family members, teachers, etc.; and visiting the home and school.
  • The agency may apprehend the child while it investigates.
  • If the agency apprehends the child during the investigation, the agency must return the child within a specified period of time as set out under the statute, usually 3 – 5 days. If the child is not returned, the agency must start court proceedings to demonstrate that the child “is in need of protection” and justify apprehension.

3. Determination

  1. Child NOT in Need of Protection

    The agency may investigate and decide the child is not in need of protection. No further steps will be taken toward taking the child away from the family.

    But, even in these cases, the agency may identify challenges faced by the family and encourage the mother or parents to sign an agreement—usually called any of: a family service agreement, plan of service agreement or voluntary service agreement – to access services through the agency, such as counseling, support with meal planning and budgeting and parenting skills. In some provinces and territories there are programs that provide some additional income assistance to mothers, which can only be accessed through voluntary service agreements.

    Women can feel pressured into accessing voluntary services.

    VAW service staff can support women in their discussions with the agency and in making the decision to access or not access services.

  2. Child In Need of Protection – Plan of Care

    Where the agency investigates and determines that a child is in need of protection, it may apprehend the child, or it may:

    • Enter into an agreement with the parent that sets out conditions to protect the child. This agreement is often called a “Plan of Care”. If the agreement involves the child being placed with an extended family member or other person in the community for a period of time, this may be called a “Voluntary Placement Agreement”. Different words are used in differed jurisdictions.

“Status Quo”

In the Building Service Capacity training the term “status quo” was discussed a lot. The “best interests of the child” test stresses the importance of continuity, stability and minimal disruption in the lives of children. Keeping the “status quo’ means “keeping things the way they are”. When making a plan of care or deciding how to cope with abuse, women should remember that the “status quo”, once established, can be hard to change. Similarly, it is very important that women establish a “status quo” of active and positive engagement with the child protection agency and process, including attending meetings and having as much access to their children as possible if the children have been apprehended or under any plan of

A Plan of Care Agreement may include:

  • Where the child will live and who she will live with;
  • What support services might be needed to make the child’s home safe;
  • Counseling for the child or the parents;
  • How much time each parent will be able to spend with the child;
  • Other conditions such as persons who may not be permitted in the home or other steps that the mother must take (like giving her prescription drugs to her sister, who lives with her, who will dispense specific amounts at certain times of day)

Usually a Plan of Care is for a maximum period of one year, although it can be renewed.

If a Plan of Care agreement is signed, the child protection social worker will stay involved and visit the family to make sure that the agreement is being followed. If the conditions are breached, the agency may apprehend the child.

Often women report feeling pressured to sign a Plan of Care to avoid apprehension.

Women who are confronted with the possible apprehension (or re-apprehension) of their children may be:

  • Traumatized and panicked
  • Unable to think clearly because of the fear
  • Unable to “hear” what is being said to them
  • In a state of mind that they will agree to anything to get their children back, sometimes without clearly understanding or considering what is being asked of them;

How Can VAW Service Staff and Community Advocates Help?

Notice Required to First Nations and Aboriginal Communities

Where a child is Aboriginal, most provincial and territorial laws require that notice of the apprehension be given to that child’s community. Who must be notified and at what stage of the Court proceeding differs from jurisdiction to jurisdiction. Where notice is given, the community (e.g. a First Nation Band) is entitled to the complete child protection court file and to make submissions on what order or plan would be in the best interests of the child.

  • Sit in on the meeting with the social worker. The woman is entitled to have a support person present if she chooses
  • Make the woman feel calm and supported
  • Help to ensure the woman understands what is said
  • Ask for a translator where this would help the woman feel more comfortable and reduce the risk of misunderstandings
  • Ensure all possible support persons for the woman are identified;
  • Help ensure that the terms of the Plan of Care are specific and not boilerplate and general
  • Work with the woman in advance of meeting with the social worker to develop a Plan of Care which is creative and appropriate for that woman/family
  • In some jurisdictions (like Nunavut) a Plan of Care Committee is established once the child is determined to be in need of protection. Front line workers and community advocates may be members of the Plan of Care Committee
  • Help the woman speak to a lawyer before a Plan of Care is signed

4. Apprehension

If a child is apprehended, the child MUST:

  • be returned within a period of time, usually 3-5 days OR
  • the child protection agency must prepare court documents and “serve” them on [give them to] the parents within a short period of time

WOMEN SHOULD CONTACT A LAWYER IMMEDIATELY FOLLOWING APPREHENSION

If a child is apprehended the parent has a legal right to:

  • know why the agency has apprehended the child;
  • a lawyer
  • receive copies of the court documents
  • participate in the court proceedings

5. Court Proceedings

Following apprehension, child protection agencies will usually continue to have discussions with the woman or her lawyer to try to come to an agreement on what happens next.

The first court date – sometimes called “first appearance” court – is required by law to be held in a short time period (usually 20 -30 days) following the apprehension.

It is very important that women attend court if they don’t have a lawyer. If they can’t attend court they should at a minimum contact the child protection agency and let them know they intend to participate (and are getting a lawyer, if that is the case).

Deemed Consent: If a woman repeatedly does not show up at court, her consent to the Order which the child protection agency is seeking will be “deemed.” That means the Court will assume that she agrees with the apprehension and whatever conditions or order the agency is asking the court to order.

At the first court date, the case will often be “adjourned”, or put over to another date. Many times the adjournment is at the request of the woman’s lawyer in order to have more time to speak to the woman and her family and put together the facts for the best possible case for the woman.

If the woman and her lawyer cannot come to an agreement with the child protection agency, the child will remain in care until the case is heard.

It can often take many months before a case moves from initial apprehension to trial.

At the end of the trial, the Court will decide whether the child protection agency has demonstrated that the “child is in need of protection” and what Order to make.

The types of orders made by courts in child protection proceedings include the list below. The words used to describe these orders are not exactly the same in each province and territory:

  • Supervision Order
    • The child is returned to the mother/parents but the Court orders supervision of the home/family by the child protection agency to make sure the home is safe. Usually the order will include conditions that the mother or other family members take steps to make the home safe.
  • Temporary Custody Order [other names: Temporary Guardianship Order; Temporary Care Order]
    • the children will be in the care of foster parents or other guardians for a period of time. During this time, conditions—such as counseling—are usually placed on parents to make the home safe for the return of the child.
  • Permanent Custody Order [other names: Permanent Guardianship Order]
    • This order is only made where the home environment is very unsafe and it is unlikely it will become safe. The children are permanently in the care of foster parents or other guardians, but they are not adopted by those caregivers. Biological parents may still have access.

How VAW Service Staff Can Help:

In addition to the forms of support listed above VAW service staff can:

  • Attend meetings with the lawyer with the woman’s consent.
  • Help the woman prepare for her meetings with the lawyer.
  • Often women are intimidated or too traumatized to advocate for themselves with their lawyer. VAW service staff can help with this.

Legal aid lawyers tend to have very large caseloads and significant demands on their time. VAW service staff can help by:

  • Identifying and reaching out to sources of support for the woman, including family members, elders, and social services.
  • Working with the woman, in a supportive and safe environment, on her proposed “Plan of Care”, preparing it for discussion with the lawyer, focusing on the woman’s strengths and realistic and achievable steps towards healing.
  • Helping the woman “tell her story” to the lawyer in a way that is factual, rather than emotional.
  • Making sure the woman understands what the lawyer is saying
  • Asking for translation services if necessary
  • If the woman disagrees with the lawyer’s advice, helping her articulate why and what she wants

Key messages to convey to women who are dealing with child protection

VAW service staff should encourage women to:

  • Work with the child protection agency in as respectful and collaborative way as possible, while speaking up for themselves and their rights.
  • Contact a lawyer as soon as possible.
  • Be as engaged as possible. Missing meetings with the child protection agency, not answering the phone or responding, can be interpreted by the agency and the Court as not caring about the children or the process or not being capable of parenting.
  • Ensure that they understand the terms of any agreements made with the child protection agency.
  • Ensure that the terms of any agreement are specific, clear and make sense for their circumstances and needs. (Don’t agree to terms that women know they can’t fulfill.)
  • Ask for translation if needed.
  • Bring a support person to meetings if that would be helpful.
  • Not give up hope, even if a Permanent Order is made. If a woman continues to heal she may be able to have her child returned to her. In the meantime, it is often good to try to get as much access and time with her child as possible, provided it is healthy and safe for her and the child.

Where a child is apprehended, women should be encouraged or supported to:

  • Contact a lawyer as soon as possible
  • Show up in Court and be engaged, if she doesn’t show up in Court, her consent to the Order that the child protection agency wants will be “deemed” (meaning it is assumed that she is agreeing with the agency)
  • Contact the agency (either on her own or through her lawyer) and ask for access as soon as possible. In many cases it is good to ask for the maximum access that makes sense in the situation. Women want to establish that they care about their children, that they want to stay engaged, and want to create a “status quo” of maximum contact with their children, to the extent possible
  • If she can’t make it to Court or to a meeting with the agency, call and let the agency know. Her support person can also make this call

There is a “Strategies and Ideas” document prepared for the training to assist support workers and community advocates in helping women involved in the Child Welfare process. Click here to see Strategies and Ideas documents in each training.

Current as of January 2014.

Useful resources

National:

Alberta:

Manitoba:

Northwest Territories:

Ontario:

Saskatchewan:

Child protection laws

British Columbia:

Alberta:

Saskatchewan:

Manitoba:

Ontario:

Quebec:

New Brunswick:

Prince Edward Island:

Nova Scotia:

Newfoundland and Labrador:

Yukon:

Northwest Territories:

Nunavut:

Additional Resources on Child Welfare in Canada:

Canadian Child Welfare Research Portal: