Court process

Every family is different, so the child protection process is a little different for everyone. The information here is a basic guide only. An advocate can help you understand the process. A lawyer can give you legal advice.

If a social worker from the Ministry of Children and Family Development (MCFD) or a delegated Aboriginal agency contacts you or visits your home, you might be under investigation. If they decide your child needs protection — and their health or safety is in immediate danger or there's no less disruptive way to protect them — they can remove (take) your child from your home. Your child will either be placed in temporary foster care or live with a relative or friend until the court decides the best way to protect your child.

If MCFD removes your child

• Find out as much as you can from the social worker about where your child is going and what will happen next.
• Ask to have your child returned to you as soon as possible.
• If it's important to you, ask for your child to stay in a home of the same culture, religion, or sexual orientation as yours; to be able to go to their own school and see their family doctor; and to have visits from grandparents and other relatives.
• Ask the social worker how and when you can see and talk to your child.
• Find out how you can tell the caregivers or foster parents about your child's needs and any health issues.
• Send your child's clothes, favourite toys, books, and other things to your child as soon as possible.
• Try to develop a good relationship with the social worker, and show you want to do everything you can to get your child back.
• Ask about your first court date. The social worker should be able to tell you the date, time, and location.

Once your child is safe, the social worker starts the court process that decides how their concerns will be addressed.

The court process has two main hearings:

• presentation hearing
• protection hearing

If your child has been removed and you have a date for a court hearing

If your child has been removed, your matter will be scheduled to appear in court within seven days of the removal. This first court appearance will go ahead at the scheduled time and day (or on the court list day) in person. See Court hearings below.

Court hearings

Many court proceedings are being held by telephone or audio or video conference, while others are in person.

Family case conferences are happening virtually by telephone or by audio or video conference through the online platform MS Teams. However, unless a court tells you otherwise, you must attend in person for Aboriginal Family Healing Court Conferences, trials, trial continuations, and court appearances if:

• spoken evidence will be given and
• you must give notice to the other person.

All other court appearances can happen in person or remotely, although you may have to ask for the court’s permission to appear in person.

If you're attending virtually

Even though you may be attending court virtually, you're still expected to follow courtroom etiquette. This means that during your court proceeding, you're expected to dress appropriately (if you're attending by video), and you're not allowed to smoke or vape, or to eat or to drink any liquids other than water.

If you're calling into court through telephone conference or MS Teams, make sure to mute yourself while waiting for your hearing to begin.

The Provincial Court website has a guide to video and telephone conferences. The court links for calling in to attend court are the same as for regular list days. If you're unsure of the call-in information, you can contact the court registry before your court date to ask for it. See the Provincial Court website to find contact information for each court registry.

See also Provincial Court remote proceedings.

Before you go to court

• Get a notebook, a folder, and a calendar or planner so you can keep track of everything.
• Every time you talk to the social worker, your advocate, or your lawyer, take notes.
• Keep all forms and papers in the folder.
• Put the dates for all meetings, hearings, and other things you have to do in your calendar or planner.

Presentation hearing

The first time you need to appear in court is for the presentation hearing. This hearing happens within seven days of your child being removed from your home. This hearing decides:

• whether MCFD or the delegated Aboriginal agency was right to remove your child
• the best place for your child to live until there can be a full protection hearing

If your child is 12 or older, the social worker tells them about the hearing, and they should plan to be there. Other members of your family or other groups might also be told about the presentation hearing.

If you haven't had a chance to get legal advice, ask the judge to adjourn (delay) the hearing until you speak to a lawyer or apply for legal aid.

What happens at the first appearance

The presentation hearing sometimes takes place in two stages: the first appearance and the full presentation hearing.

On the day of the first appearance (and sometimes before), you get a copy of the Report to Court. It says:

• why MCFD or the delegated Aboriginal agency believes they need to protect your child
• how MCFD or the delegated Aboriginal agency plans to care for your child until the protection hearing
• how and when you get to see your child while they're not in your care

After the judge reads the report, MCFD's lawyer tells the judge what kind of order MCFD or the delegated Aboriginal agency wants. Usually, they want to:

• keep your child in foster care under an interim custody order until a protection hearing can be held,
• place your child with a relative or other adult under an interim supervision order until a protection hearing can be held, or
• return your child to you under an interim supervision order until a protection hearing can be held.

Then it's your turn to say what you want and whether you agree with MCFD or the delegated Aboriginal agency's plan:

• If you agree with MCFD's plan, the presentation hearing ends, and the protection hearing takes place within 45 days.
• If you don't agree with MCFD's plan, you and your lawyer can tell the judge why you don't agree and what you think should be done instead.

The judge decides what to do and can:

• make an interim order for supervision or custody. The order covers the time between now and the end of the protection hearing.
• return your child. If you and your lawyer show your child doesn't need protection, or you worked out an agreement with MCFD and you made changes the social worker suggested, your child is returned to you.
• adjourn (delay the court process). If you ask for more time to think about what to do or to get legal advice, you have to come back at a later date.
• proceed with a full presentation hearing. If you don't agree to an interim order for supervision or custody and you want to have a presentation hearing, the judge sets a date. The date is usually several weeks in the future.

What happens at the full presentation hearing

The judge looks into the situation in more detail. Witnesses might give evidence (testify):

• MCFD's main witness is usually the social worker who wrote the Report to Court. After MCFD's lawyer questions the social worker and any other witnesses (for example, a doctor, the police, a probation officer), you or your lawyer might cross-examine them (ask them questions).
• Then you have your turn to give evidence and call your witnesses. MCFD's lawyer cross-examines you and your witnesses.

Next, MCFD's lawyer says why the judge should make the order they want, based on the law and the evidence. Then you have your turn to say why you think MCFD shouldn't have removed your child and why they should return your child to you.

The judge might make an order that day, or in the weeks following the hearing.

• If MCFD doesn't show they were right to remove your child, the judge orders your child to be returned to you. That ends the court process.
• If MCFD shows they were right to remove your child, the judge might make a custody order. The judge also makes an order to set the start of the protection hearing within 45 days.

Protection hearing — first appearance

What happens before the protection hearing

MCFD or the delegated Aboriginal agency tells you the date of the protection hearing about 10 days before. They also tell your child if they're 12 or older, a representative from your community if you're Aboriginal, and anyone else the court thinks should be there.

They also tell you what kind of order they're asking for and how they want your child to be looked after. This will be part of the plan of care. It has the same basic facts as the Report to Court and other information such as:

• your child's current living arrangements
• what services MCFD or the delegated Aboriginal agency plans to provide for your child, you, and any others involved in your case
• MCFD's or the delegated Aboriginal agency's goal for your child — for example, returning your child to you or keeping them in foster care

What happens at the first appearance

The judge reads MCFD's document and asks MCFD's lawyer what kind of order they want. The judge then asks whether you agree or disagree with MCFD.

• If you agree with the order, the judge makes the order that day.
• If you and MCFD don't agree with the order they want, or it's agreed more time is needed to settle the matter, the judge must order you and MCFD to have a case conference.

Case conference

A case conference can be held at any time after MCFD or the delegated Aboriginal agency removes your child from your home. It's another chance for you and MCFD or the delegated Aboriginal agency to reach an agreement.

Although a case conference is less formal than a court hearing, the outcome of your case might depend on it. You and your lawyer need to prepare well for a case conference.

Who attends a case conference

A judge leads the case conference. Even if the case conference is held in a courtroom, it's private, and only people directly involved in your case are allowed in the room.

• You must go to the case conference.
• Your lawyer, the social worker, and MCFD's lawyer also go.
• You have the right to ask the judge to have your advocate there.
• If you're Aboriginal, a representative of your community can go.
• The judge might ask your child, other family members, or others involved with you or your child to be at the case conference.

How to prepare for the case conference

• Talk to your lawyer and advocate about any issues that might come up.
• Make sure you and your lawyer have all of the information about what MCFD or the delegated Aboriginal agency wants to do, why they want to do it, and what their witnesses are going to say.
• Discuss with your lawyer what you want to say to the judge. Most judges want parents to speak to them directly.
• Come up with your own ideas about ways to keep your child safe.
• Be ready to show how you've been responsible in the past and will be responsible in the future.
• Review with your lawyer any disclosure (documents) MCFD's lawyer gives to your lawyer.

What happens at a case conference

The judge asks to hear from both sides and tries to get you and MCFD to work out a solution. You, your lawyer, the social worker, and MCFD's lawyer speak at the case conference.

No orders for supervision, custody, or the return of your child are made unless everyone agrees. If you and MCFD still can't agree, a full protection hearing is held.

Full protection hearing

The purpose of the full protection hearing is to give the judge all of the evidence in the case so they can decide whether your child needs protection.

At this time, all full protection hearings are taking place in person at the designated courthouse (unless you're told differently by the court). Arrive early at the courthouse on your hearing day. Once you're in the courthouse, a sheriff will tell you where to wait. Make sure to follow the sheriff's directions and wait in the approved areas.

What happens at the full protection hearing

First, MCFD's lawyer tells the judge what kind of order they're asking for.

Then MCFD's witnesses give evidence and answer questions from MCFD's lawyer. You or your lawyer then cross-examine each of their witnesses. MCFD might also give documents as evidence.

Next, you and your witnesses answer your lawyer's questions. Then MCFD's lawyer cross-examines you and each of your witnesses.

When all the witnesses have spoken and been cross-examined, MCFD's lawyer says why the judge should make the order that MCFD asked for. Then you or your lawyer say why that order shouldn't be made and a different order should be made instead.

The judge either makes an order right away or reserves the decision. This means the judge ends the hearing and makes the order later, after they review all the evidence and think about what to decide.

What the judge decides

The judge makes a decision in your child's best interests.

• If the judge decides your child doesn't need protection, your child is returned to you and the court process ends.
• If the judge decides your child needs protection, the judge must also decide the best way to protect you child, based on the law. The judge makes an order setting out all the conditions (what has to be done) and the term of the order (how long it lasts).

The judge can choose from four different child protection court orders.

If you disagree with the judge's order, you might be able to appeal it (ask the court to reconsider the order). Time is limited to get an appeal, so you need to act quickly. Get legal advice right away.