Rights of Indigenous Peoples
Indian Act
Know Your Rights
Criminal Law
Child Protection
Fair Decision Making
In some cases, a case worker or a judge may decide it is in your child's best interests to live outside of your home and out of your daily care. This happens if a case worker or the court finds that your child is not only in need of protection but is at risk of serious harm and that the harm or risk of harm cannot be managed by providing services and monitoring the situation through a Family Services Agreement.
A child can initially be removed from your care in two ways...
- You may sign an agreement, called a Residential Services Agreement or a Section 9 Agreement, where you accept services and agree to have your child cared for outside of your home for a set period of time (see the link above for more information)
- Your child may be removed without your agreement (called apprehension), where a case worker or peace officer finds that your child is at risk of serious harm if left in the current situation and that there are no other arrangements or services that can keep them safe. In this case, they must make an application to court to have the court review the apprehension.
If your child is apprehended, a case worker must:
- tell you the reasons for the decision to apprehend your child
- give you contact information for the case worker responsible for your file
- offer you services that can help to have your child returned to you
- tell you that you should speak with a lawyer
- notify any applicable FNCFS Agency, your First Nation or other Indigenous governing body about the apprehension
If your child is not returned to you within 48 hours, the Ministry or FNCFS Agency must apply to court within seven days (beginning with the day after the child was apprehended) for a protection hearing. You can ask to see your child before that court hearing happens and the expectation is that visits between parents and children will be arranged. See our information on court hearings under Going to Court.
The law says that once the risks in the home are managed and the apprehended child would no longer be at risk of serious harm, the Ministry or FNCFS Agency must return your child to you or someone else who has a right to custody. This means that even if your child is apprehended, you may be able to come up with a plan to remove the serious risks and have your child returned quickly.
The case worker may still want you to sign an agreement to receive other family services and to agree to certain conditions. They can ask for this if they still believe your child is in need of protection but not at risk of serious harm. If you sign that agreement, the Ministry or Agency must withdraw their court application.
As noted under Ending an Agreement, if you have signed a Section 9 Agreement to have your child live outside of your home and you have removed the risks that led to that agreement, you can end that agreement or at least the part of it that relates to your child living outside of your home. The Ministry or FNCFS Agency would need to agree that the risk of serious harm no longer exists. If they do not agree, they may bring a court application to have a judge decide the matter.
Limits on Apprehension
It is important to know that the law says that a child cannot be apprehended solely on the basis of socio-economic conditions, including poverty, lack of adequate housing or infrastructure or the state of health of the child's parent or care provider. If you are facing these circumstances and they are the only reason your child is at risk, your child should not be removed and there should be services that can help you to manage any risk to your child.
The law also says that, except in cases where immediate apprehension is in the best interests of the child, the Ministry or FNCFS Agency must try other things before removing your child from your care. These things are sometimes called preventive services and might include different supports to help you keep your child safe.
Even though the law says both of these things, it also says that the most important thing to consider in all cases is what is in the best interests of the child. Decision-makers (Ministry, FNCFS Agency, judges) consider many factors but the most important are a child's safety, security and well-being, the importance of their relationship with their Indigenous community, and preserving their connection to their culture. (See also What Does "Best Interests of an Indigenous Child" Mean.)
