The NDP government introduced Bill 22 as “strong families building strong communities”. It appears the impetus was the deaths of children in the care of Children’s Services and the NDP’s goal to address these unfortunate events.
Often in my practice, I represent extended family members in Court applications for permanent full-time care and guardianship of apprehended children. Most often, this involves grandparents who want to look after their grandchildren who were apprehended from their parent(s) by Children’s Services due to neglect, abuse or other circumstances which caused the need for intervention by Children’s Services.
Currently interested third parties such as grandparents, aunts/uncles, adult siblings or any other interested party, may apply for private guardianship and day to day care of apprehended children under the Family Law Act. Bill 22 will abolish the ability to do this. Bill 22 changes section 52 of the Child Youth and Family Enhancement Act (CYFEA) to prevent third parties from applying under the Family Law Act for guardianship and day to day care of apprehended children.
Now interested third parties can only apply for guardianship and day to day care of apprehended children under CYFEA. Typically, this requires the support of Children’s Services and the third parties must abide by the conditions set out by Children’s Services in order to be considered an “appropriate placement option”. Often many extended families (especially First Nations and Metis peoples) feel they are not heard during placement discussions especially if Children Services prefers the foster family placement over any interested third party or extended family members.
Remember this only applies to children that are in the custody of Children Services or where there is a Temporary or Permanent Guardianship Order. When children are first apprehended by Children’s Services, who gets initial custody must be decided by the Court within forty-two (42) days of the apprehension if the child(ren) is not returned to his or her guardians or parents. Given the recent changes Bill 22 will impose, fighting for initial custody to go to extended family or an appropriate interested third party becomes crucial.
I believe to be successful during initial custody, the interested third party must show their home is an appropriate placement by formal assessment by a qualified assessor or agency, that the interested third party has a significant relationship with the apprehended child(ren) and that the third party is personally appropriate to look after the child(ren).
While no doubt Bill 22 was developed with the best intentions, the change to section 52 of CYFEA seems to be a step backwards. Prior to this change, several placement options could be considered by the Court even if Children’s Services was not in support of the alternatives. Now this is not a possibility once initial custody granted to Children’s Services.
Remember we can represent you at the initial custody hearing where the Court will decide if the apprehended child(ren) can be placed with an appropriate and interested third parties or with Children’s Services.
Author: Ms. Ning Ramos, Barrister and Solicitor