The protection of children through government intervention services in Alberta is governed by the Child, Youth, and Family Enhancement Act (CYFEA). This article focuses on the CYFEA; however, it is important to note that, on January 1, 2020, An Act Respecting First Nations, Inuit and Métis Children, Youth and Families (“the Federal Act”) came into force. The Federal Act recognizes the right of Indigenous Governing Bodies to create their own child protection laws. Where a child is a member/citizen of or affiliated with a First Nations/Inuit/Métis community who has created its own law, that Indigenous Law prevails over CYFEA. Links to child and family services Indigenous Laws can be found at: https://www.sac-isc.gc.ca/eng/1608565826510/1608565862367.
Pursuant to the CYFEA, any intervention must be done in a manner that minimally disrupts the child while preserving the family unit, in so far as possible. The involvement of Child and Family Services (“the Director”) begins with a report. In accordance with Section 4 of the CYFEA “any person who has reasonable and probable grounds to believe that a child is in need of intervention must report.” A child may be in need of intervention due to the following:
- Child abandonment, including where the child’s only guardian(s) is deceased
- Where the guardian is unable or unwilling to provide the necessities of life or medical needs
- Where the guardian is unable or unwilling to adequately care for or supervise the child
- Where there is substantial risk that the child has/will be physically injured or sexually abused by the guardian or where the guardian is unable or unwilling to protect the child from physical injury or sexual abuse
- Where the child has been emotionally injured by the guardian or where the guardian of the child is unable or unwilling to protect the child from emotional injury, including impairment to a child’s development, family violence, or substance abuse
- Where the guardian has subjected the child to or is unable or unwilling to protect the child from cruel and unusual treatment or punishment
Although there is no action against reasonable reports, failure to report is an offence. The identity of the reporter is kept confidential.
The Director has a duty to investigate all reports made on reasonable and probable grounds. Once a report is received, the Director will conduct an Intake, where they will decide on whether the report falls within the legal definition of “in need of intervention.” There are three possible outcomes from the Intake Phase: (1) file closure, (2) file closure with community referrals, or (3) where the report meets the legal definition, proceed to the Safety Phase.
Once a report proceeds to the Safety Phase, a more thorough assessment is conducted. There are three possible outcomes from the Safety Phase: (1) file closure, with or without resources being provided, (2) where concerns are noted, the guardian may enter into an agreement for services; and (3) where concerns are noted and an agreement is not possible, the Director may make an application for a court order, which may include the apprehension of the child.
Agreements with the Director
If, upon investigation, it is determined that the child is in need of intervention AND the child’s needs can be adequately protected while in the guardian’s care with support from the Director, the guardian may enter into a Family Enhancement Agreement (FEAG) for a specified period of time. Under a FEAG, the Director works with the guardian to complete certain tasks. Should the guardian require more time to complete these tasks, the FEAG can be renewed for a further specified period. Should the Director decide, upon successful completion of the terms, that the child is no longer in need of intervention, the file would then be closed. However, should further concerns arise, the Director may take more intrusive measures, as discussed below.
Where it is determined that the child is in need of intervention AND the child’s needs cannot adequately be protected while in the guardian’s care, the guardian may enter into a Custody Agreement whereby the Director has custody of the child for a maximum period of six months and the child is placed outside of the guardian’s care. A Custody Agreement must outline the care plan for the child and access between the child and the guardian.
The third agreement available under the Act is a Permanent Guardianship Agreement. Where a child has been in the guardian’s care for less than six months, the guardian may enter into an agreement whereby the Director becomes the sole guardian of the child.
Court Orders
If the Director determines more intrusive intervention is necessary, it may apply directly for a Supervision Order or, in more severe circumstances, the child may be apprehended.
If the Court is satisfied that the child is in need of intervention AND that mandatory supervision of the child and guardian(s) is required to ensure the compliance of terms to adequately protect the child, the Court may grant a Supervision Order for a maximum period of six months. In this case, the child will remain in the care of the guardian(s).
The common method of apprehension is by way of an Apprehension Order. Under Section 19 of CYFEA, the Director is permitted to make an application to the Court, without notice to the guardian, for an Order authorizing its delegate and any peace officer to apprehend the child and, if necessary, to enter a specific premise by force to do so. Where the Director has reasonable and probable grounds to believe that a child’s life or health would be seriously and imminently endangered in the time required to obtain an Order or is seriously and imminently endangered because (1) the child has been abandoned or lost, (2) the child has left the custody of the child’s guardian without the consent of the guardian, or (3) the child has been or there is substantial risk that the child will be physically injured or sexually abused, the Director or a peace officer may apprehend without an Order.
Following apprehension, the Director must return the child within two days OR make an application for a Supervision Order, a Temporary Guardianship Order (TGO), or a Permanent Guardianship Order (PGO). The first court date must occur no more than 10 days after apprehension and the application must be served upon the guardian(s) and any child who is 12 years of age or older at least two days prior to the first court date.
Where the Director applies for a TGO or a PGO, it must also apply for custody of the child pending final resolution (“Initial Custody”). Initial Custody must be determined within 42 days. Until Initial Custody is determined, the child is in the Interim Custody of the Director. The guardian(s) may consent to Initial Custody (agreeing that the Director shall have custody of the child pending final resolution) or the guardian(s) may oppose Initial Custody, at which point a hearing takes place and the Court determines whether the child shall remain in the custody of the Director or be returned to the guardian(s). In instances where Initial Custody is granted to the Director, the Court may make an Order specifying access to the guardian(s) and directing an assessment of the child or guardian(s).
Where the Court is satisfied that the child is in need of intervention AND the child’s needs cannot adequately be protected while in the guardian’s care, BUT it can be anticipated that the child may be returned to the guardian’s care within a reasonable time, the Court may grant a Temporary Guardianship Order for a specified period of time.
A child cannot remain in the care of the Director under a Custody Agreement, Interim Custody, Initial Custody, or a TGO indefinitely. The total time in care cannot exceed nine months for a child under the age of six and 12 months for a child who is six or older. If a child reaches the maximum days in care, the Director must apply for a PGO with one exception: in exceptional circumstances, the Court may grant one further TGO for a period of no more than six months where it is satisfied that (1) there are good and sufficient reasons to do so and (2) it can be anticipated that the child may be returned to the guardian’s care within the period of the TGO – this type of TGO is commonly referred to as a “33(3)” as it is granted under section 33(3) of CYFEA.
Finally, if the Court is satisfied that the child is in need of intervention AND the child’s needs cannot adequately be protected while in the guardian’s care AND it cannot be anticipated that the child could or should return to the guardian’s care within a reasonable time, the Court may grant a Permanent Guardianship Order, whereby the Director becomes the sole guardian of the child.
A PGO can be terminated in two ways: (1) by application of the Director, or (2) upon successful application by a former guardian. An application by a former guardian may only be made if: (1) the child has not been adopted, (2) at least 13 months have passed since the granting of the PGO or at least one year has passed since the disposal of any appeal, and (3) more than two years had passed since the disposal of any prior application to terminate the PGO. Navigation through the process of intervention services can be complex and overwhelming. It is recommended that any guardian involved in this process obtain legal advice prior to entering into any agreements or orders with the Director.
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
About Amanda Baretta
