When Children’s Services becomes involved with a family, the results are immediate and life-altering. One of the most serious interventions is the use of Child Apprehension Orders, which allow the government to remove a child from their home – often without any notice to the parents or guardians – also known as “Ex Parte”. While these orders are meant to protect children in urgent emergency situations where the child may be in serious harm, the current legislative structure in Alberta leaves parents with very limited ability to challenge these decisions quickly if wrongfully enacted. This updated overview explains how apprehensions work, why ex parte applications exist, and why the lack of timely review raises serious concerns about fairness, natural justice, and the best interests of children.
How Child Apprehensions Work in Alberta
Child welfare matters in Alberta are governed by the Child, Youth and Family Enhancement Act (CYFEA). Under section 19 of the CYFEA, Children’s Services can apply for Child Apprehension Orders when they believe a child is in need of immediate intervention. Unlike most court processes, these applications can be made without notice to the child’s guardians/parents.
This means the first time a parent learns their child is being apprehended may be when the child is physically removed from the home.
The intention behind this process is to allow authorities to intervene rapidly when a child is truly at risk when it comes to physical, medical or sexual abuse. However, the impact of these orders is profound: children are removed from their guardians or parents’ care in their homes, parents are denied the chance to respond, and an ex parte order sets a legal process in motion that is difficult to reverse once enacted.
Why Ex Parte Applications Exist
Ex parte applications – orders granted without notice to the other party – are not unique to child welfare. They exist in several areas of law, but the courts treat them cautiously because:
- Only one side’s evidence is presented
- There is significant potential for error or unfairness.
- The affected party has no opportunity to respond
In the child protection context, the justification is typically the concern that giving notice might lead a parent to hide or flee with the child, or interfere with the safety investigation. Courts in Alberta have repeatedly recognized that while ex parte powers are necessary, they are meant for exceptional circumstances, not as the default approach to apprehension.
The Problem With How the System Works Today
Although the CYFEA allows Children’s Services to proceed ex parte when justified, in practice, the Director of Children’s Services frequently treats this as permission to proceed ex parte in all cases, overstepping and using such an act to carry out child apprehension regardless of whether any risk of flight or interference exists.
This default approach has been criticized by Alberta courts, including in cases such as:
- C.J.P. v Alberta, 2007 ABQB 659
- C.R. v Alberta, 2015 ABQB 198
- Alexander v. Cherry, 2007 ABCA 128
These decisions reinforce that:
- Ex parte orders must be used sparingly and only when appropriate.
- Full, fair, justified and balanced evidence must be provided
- The responding party must have a timely opportunity to challenge the order.
Yet despite clear judicial guidance and process, the current administrative practice remains largely unchanged.
Parents No Longer Have a Fast Way to Challenge these Apprehensions
Under Alberta’s former legislation – the Child Welfare Act – a parent/guardian had the explicit right to demand a prompt review of an ex parte apprehension order. That safeguard disappeared when the CYFEA replaced the old Act and took effect.
Today, there is no legislated process allowing a parent to force a timely review of an ex parte apprehension.
This creates a significant imbalance, meaning:
- Children’s Services can obtain Child Apprehension Orders without notifying the parents/guardians.
- Parents have no corresponding right to quickly challenge the decision.
- Courts frequently decline to review the initial order on the first return date.
The result is a process that undermines the principles of natural justice.
What Happens After a Child Is Apprehended
Once a child is apprehended, and not returned to the guardians within two days, section 21 of the CYFEA requires the Director to return to court within 10 days to apply for one of the following: a supervision order, guardianship order, an order returning the child to the guardian, or, where the child ordinarily resides in another province, an order placing the child in the custody of child welfare authorities in that province.
The Director must provide notice of the application to the child’s guardians. At the hearing, guardians have the opportunity to challenge the evidence presented by the Director, provide evidence on their own behalf and on behalf of the child, and make submissions regarding the child’s best interests. The court may also consider the applicable provisions of federal child welfare legislation relating to Indigenous children, including the importance of preserving family, community, and cultural connections.
Following the hearing, the court will determine whether the child should be returned to the guardians, remain in the custody of the Director, or whether the matter should be adjourned for a further hearing. Any adjournment cannot exceed 14 days at a time unless the parties consent to a longer period, and the total adjournment period cannot exceed 42 days from the initial return date.
Even then, the hearing does not examine whether the original apprehension was warranted. It only determines whether the child should remain in the Director’s custody going forward or be returned to the child’s guardians.
In other words:
There is never a full hearing on whether the apprehension itself was appropriate in the first place.
Why This Delay Is So Serious
The Supreme Court of Canada has been clear: removing a child from parental care engages section 7 of the Canadian Charter of Rights and Freedoms. Fundamental justice requires a “fair and prompt” post-apprehension hearing.
In KLW v. Winnipeg Child and Family Services, the Court suggested that a two-week delay was likely the constitutional upper limit for reviewing child apprehensions.
If guardians are unfamiliar with the court system or unable to promptly obtain legal representation, there may be no meaningful review of the apprehension for up to 52 days, far exceeding the intended timeframe for timely judicial oversight. This creates the risk that an initial, one-sided decision becomes the effective status quo, without ever being tested by a full evidentiary hearing. Why
This Severely Affects Children & Not Just Parents While parents experience the stress and trauma of losing their child without warning and having them physically removed from their home, the real harm is often felt most by the child: Being placed with strangers Separation from family, siblings, and community Cultural or identity disruption
Lasting emotional effects of sudden removal If the apprehension was unnecessary or based on incomplete evidence, the child may spend weeks or months in the care of other individuals, potentionally long enough for meaningful attachments to form or be disrupted, before anyone has the chance to challenge the decision.
A Lack of Balance in the Current System
The CYFEA gives Children’s Services the urgent power to seek Child Apprehension Orders without notice, but it fails to provide parents any urgent right to respond. This creates a system where: One-sided evidence receives immediate judicial approval. Courts defer review because of scheduling constraints.
The initial apprehension is never properly tested. As a result, families in child welfare proceedings have fewer procedural protections than litigants in many civil disputes involving property or money. This contradicts the very purpose of child protection legislation: promoting children’s best interests.
Why This Matters
A child welfare system can only function fairly when: Authorities can act urgently when needed Parents and guardians are given meaningful procedural protections. Courts have the ability to review decisions promptly Children’s rights and Charter protections are upheld When the balance tilts too far in favour of unilateral action, the risk of injustice – to both parents and children – grows.
When Legal Help Matters
If your child has been apprehended or if you are facing concerns involving Child Apprehension Orders, it is critical to get legal advice immediately. The timelines are short, the process is complex, and the consequences are significant. Our lawyers at Mincher Koeman have extensive experience challenging apprehension decisions, protecting parental rights, and ensuring that children’s best interests – not procedural gaps and oversight– drive the process.
We are here to help you understand your rights and take action quickly to protect your family. Contact us today for our help.
