Family Law isn’t just my job, it's personal to me. Picture yourself or a family member in one of these heartbreaking situations:
Your daughter and her boyfriend used illegal drugs, but promised to get clean and healthy. They just had a baby - and you suspect your daughter may be using drugs again. They have custody, but as the grandparent, you have reason to believe the baby’s safety is at risk. Your daughter denies the drug use, and says everything is fine.
You took a foster child into your home several years ago due to an abusive home situation. You’re the only parent that child knows. Now, the mother wants custody back, and it looks like she will get it. How can you protect this child who only knows and loves you - but is not legally your child?
Your ex-spouse has called the authorities and reported that your home is unsafe, and that you are putting your children in jeopardy by leaving them unattended and uncared for. You know your spouse is doing this as retaliation - but the authorities are investigating you.
What would you want to happen if this were your child or grandchild, who is being removed from their home?
Family Law often involves difficult cases, and many conflicting and wildly different viewpoints. In each of these situations, in Alberta there is a very real possibility that Child and Family Services will be contacted. If they determine it is an emergency situation, or if their investigation shows the child is at risk, the child can be removed from the home.
The protection of defenceless children is a priority, but when people find themselves in a difficult situation, they often don’t know what to do, who to ask for help or what the role of the government is. In these situations, a logical first step is to contact an experienced Family Lawyer who can help you understand the laws, protect the rights of the child and their parents, and - most importantly - protect the safety and well-being of the child.
What Is Child and Family Services?
The removal of a child from a parent by Alberta Child and Family Services (CFS) is devastating and stressful for any family. In most instances, CFS will only remove your child from your care if they have reasonable and probable grounds to believe that your child is “in need of intervention.” CFS must strictly comply with the Child, Youth and Family Enhancement Act (“CYFEA”). Any decisions that are made by the court, CFS and others pursuant to the CYFEA must always consider the best interests of your child.
Child and Family Services can take your child in Alberta if they believe your child’s safety, security or development is endangered because of neglect, physical or sexual abuse, emotional injury, or cruel and unusual treatment or punishment by the child’s guardian. CFS may also take your child if you are unable or unwilling to protect your child from such abuse. Women who are recovering from or struggling with addiction while pregnant may have their children taken away from them shortly after giving birth. Some of these grounds regarding a child as needing intervention are very nuanced and open to considerable interpretation.
If your child has been removed from your care, we can help you take proper legal action until you can bring your child back home. Below are some answers to common questions we receive about how and when Child and Family Services can take your child in Alberta.
FAQs About Child Intervention When CFS Removes Your Child
What Is The Best Interest Of The Child?
‘In the best interest of the child' means all legal decisions made regarding your child will always uphold the goal of fostering and encouraging the child's happiness, security, mental health, and emotional development into young adulthood.
When it comes to deciding parenting issues in Alberta, a child’s wellbeing is prioritized above their parent's decision-making responsibility, formerly known as custody.
What are the Responsibilities of Provincial Law and CFS to Protect the Child?
The Child Youth & Family Enhancement Act (CYFEA) governs the protection of children through intervention services in Alberta. Anyone who believes a child intervention is necessary must report their concerns to authorities. Failure to report a child that may be in danger is a legal offence in Alberta. There are few exceptions to this rule.
The Director of Child and Family Services has a duty to investigate all reports made on reasonable and probable grounds. If they have completed their investigation and there is no reason for concern, the case will be closed.
Is It Legal for Child and Family Services to Take Your Child in Alberta?
Yes. Under section 19 of the CYFEA, CFS has the right to apply for an Apprehension Order without giving you notice of their application. In legal terms, apprehension refers to the seizure of a person by legal processes.
What Happens If CFS Takes Away Your Child in Alberta?
If Child and Family Services takes away your child in Alberta, the Director must return your child within two days or apply to the court for a Supervision Order, a Temporary Guardianship Order (TGO), or a Permanent Guardianship Order (PGO). These orders are further described below.
The Director of Child Services will serve you with a copy of the Application together with a Notice of the date you have to appear in court to oppose the application. This application must be heard no later than ten days after the child is apprehended. CFS will generally try to give you as much notice as possible, but you may only get two days’ notice before the court date.
What Happens If My Child Is Not Returned to Me After the Two Days?
If a child is apprehended and is not returned to the custody of their guardian after two days, the director must apply to the court for either a supervision order, a temporary or permanent guardianship order, or an order returning the child to the custody of the child’s guardian. Following this application process, if the Court does not believe that the child is in need of intervention, they may order the director to return the child to the custody of the child’s guardian. However, if the Court finds that the child is in need of intervention, the court can grant the order that CFS is applying for, but the court can also grant a different order.
If the director makes an application to the Court for a temporary or permanent guardianship order, the director must also make an initial custody application. This custody order will remain in place until the application for a permanent or temporary guardianship order is withdrawn or disposed of. It is within a mother’s rights to oppose an initial custody application. If you do, a date will be set for the Initial Custody Hearing, which must take place within 42 days of the first court date.
Should Child and Family Services take your child, the court will try to respect your bond as much as possible. During the Initial Custody period, the Director of Children’s Services will assess the potential for your child to be returned home.
What is a Supervision Order?
You may be granted a Supervision Order if Child and Family Services determines you only need support to provide appropriate care for your child in your own home. During this time, support workers will help you resolve family issues, which may include undergoing assessment and receiving help for addiction or mental health issues.
What Is a Temporary Guardianship Order (TGO)?
The court can grant a TGO if your child is in need of intervention, the safety, security or development of the child cannot be adequately protected if the child remains with you, AND it can be anticipated that within a reasonable time your child may be returned to your custody.
The Government of Alberta will provide foster care for your child, or your relatives can through kinship care. If your child is in foster care, you and your relatives may still be able to visit your child at the discretion of the court. The goal will be to return your child to you within a reasonable time, usually less than six to nine months.
What Is a Permanent Guardianship Order (PGO)?
The director may make an application for a permanent guardianship order if they believe you won’t be able to care for your child within a reasonable amount of time. An adult who already has a relationship with the child, like your parents or siblings, for example, can apply to become your child’s guardian.
It’s important to stress that only if all viable options have been exhausted, then a permanent foster home will be arranged to match your child with a family of a similar culture or social heritage. In most cases, your child will likely live with a family member.
Can a Judge Extend a TGO into a PGO?
A recent Court of Queen’s Bench (QB) case clarified the terms of Temporary Guardianship Orders (TGOs) in a decision that strengthens parents’ rights to custody of their children. In this case, a provincial court judge turned a TGO into a Permanent Guardianship Order (PGO), which meant that the children would not be returned to the care of their mother and would remain under care of the state until they reached adulthood.
The QB Justice overturned this decision and determined that when a TGO is issued, the goal is for the child to be returned to their guardian after a reasonable amount of time. The Director must file a Service Plan that outlines the care of the children and what a guardian is required to do in order to regain custody of the child. The Service Plan is then used to help courts decide whether they will restore custody of the child to the guardian, issue another TGO, or issue a PGO.
This decision reinforces that the purpose of a TGO is to provide temporary care for a child with the ultimate goal of returning the child to the custody of their parents where possible. A TGO is not merely a step that precedes the issuing of a PGO. Additionally, this decision holds that it is the duty of trial judges, not Child & Family Services, to determine the terms of visitation between guardians and children.
Can I Appeal a Temporary or Permanent Guardianship Order?
It is well within a guardian’s or mother’s rights in Alberta to oppose the Director’s application. If the Director has filed an application for a Permanent Guardianship Order (PGO), then you will need to act quickly, as it can have lasting consequences.
Protecting the safety and rights of vulnerable children is critical. Yet, Child and Family Services may make mistakes. If your rights as a parent are being challenged, or if you see a vulnerable child who is not being protected, then you should seek aid from a Family Law lawyer. They can advise you on the law and help you fight to protect the best interest of the child.
Calgary Family Law Lawyer Charles Fair
Canada’s family laws are governed by federal and provincial laws. Family lawyers represent their clients in court and negotiate disputes between spouses and family members. Charles Fair has been practicing Divorce and Family Law for nearly 30 years.
Fair Legal handles all types of custody and family legal matters to protect your children, property and you. Contact us at 1 (403) 239-2249 to schedule a confidential meeting with a member of our legal team.
Calgary lawyer Charles Fair brings over 30 years of experience to Fair Legal in criminal, family and civil litigation. Charles draws on his personal experiences related to each field of law which helps him to understand and relate with each of his clients. He is compassionate, caring, and will always be your champion for justice when life gets messy.