When making a decision, the court must consider the best interests of the child at all times.

It can be several weeks after a protection hearing is finished before the judge in a case will make a decision. An interim order may or may not be in place during that time. See Interim Order.

When making a decision, a judge must consider the best interests of the child at all times. The judge will consider all of the evidence that was presented and decide based on that evidence what is in the best interests of the child. Although everything comes down to the best interests of the child and the evidence presented, the law outlines a few key stages of the decision-making process that a judge will follow.

STAGE 1: Decide whether the child is in need of protection.

A judge will first decide, based on the evidence, whether a child is in need of protection. If the judge decides the child is not in need of protection, the child will immediately be returned to their parent. If the court finds the child is in need of protection, they need to decide what should happen next and what kind of order should be made.

STAGE 2: Consider one of the following orders.

A judge will first consider whether one of the orders below can be made. The judge will consider the evidence presented and the best interests of the child at all times. They may also consider the recommendations of the case worker, the child's First Nation or other Indigenous governing body and any applicable FNCFS Agency.

Child remains with or is placed with on or both parents
Child is placed with a Person of Sufficient Interest
Child is placed in care of Minister for up to 6 months

Child with Parents

A judge may decide that a child can remain with or be returned to one or both of the child's parents, as long as certain conditions or supports are in place. For example, a judge may require the Ministry or FNCFS Agency to supervise the child's care. This condition can be in place for up to one year, at which point the supervision ends or the Ministry or Agency applies to renew it for another 6 months (longer if a judge grants a special extension).

Child with Person of Sufficient Interest

A judge may decide that a child can be placed in the care of a Person of Sufficient Interest. Remember that a Person of Sufficient Interest or a "PSI" is a person who has a close connection to a child, has undergone a home study and assessment and who asks to be designated as a PSI for the child.

An order placing a child with a PSI can be either for a certain period of up to one year or it can be for an indefinite period of time. The Ministry or FNCFS Agency can apply to renew a time-limited order if they can show that the child continues to be in need of protection.

Conditions are usually attached to a PSI order. A judge may order that a child's care by a PSI be supervised by the Ministry of FNCFS Agency. As above, this condition can be for up to one year and can be extended for 6 months or longer by a judge. Conditions may also include access to the child (visits) by a parent, grandparent or other person or conditions requiring the PSI to take certain steps to make sure the child remains connected to their culture and community. There are no limits on how long those types of conditions can be in place.

Child in Care of Minister

A judge may decide that a child should be placed into the temporary care of the Minister (foster care). This order can initially be for a maximum of 6 months. The Ministry or FNCFS Agency can apply to renew the order if they can show that the child continues to be in need of protection and at risk of serious harm.

Usually, a child can only be in the temporary care of the Minister for a total of 24 months. A judge can extend that period if the judge decides that the circumstances that led to the child being found in need of protection are improving and that the child will be able to return to their parent within a reasonable time. Otherwise, once the 24-month mark is reached, a judge must order the return of the child, consider placement with a PSI or consider a permanent or long-term order (see below).

Conditions are usually attached to these orders, often requiring or allowing visits by a parent, grandparent or other person or requiring the Ministry or FNCFS Agency to take steps to ensure continued connection to culture and community.

STAGE 3: Consider a permanent or long-term order

If a judge does not think any of the orders listed above is appropriate or possible (for example if there is no suitable PSI, the child cannot be returned to a parent or the child has already been in the care of the Minister for two years), they will make an order placing the child in the care of the Minister permanently unless the judge finds that adoption of the child is unlikely. If they find that adoption is unlikely, they may make a long-term order instead.

If a permanent order is made, a child can be adopted. If a long-term order is made, a child will remain in foster care until they are 18, unless the order is later changed. A judge will want to have evidence about the possibility of adoption so that all options can be considered.

As with other orders, the court can place conditions on a long-term or permanent order which can include conditions

requiring access (visits) by a parent, grandparent or other person
to ensure the child remains connected to culture and community
requiring consultation with a child's First Nation or other Indigenous governing body in plans to maintain cultural connection, whether as part of an adoption plan or otherwise.