When a child is apprehended in Alberta and the Director of Children’s Services determines that the child should remain in their custody pending an investigation, the Director must file what is known as an Initial Custody Application. If the child’s parent or guardian opposes the application, there will be an Initial Custody Hearing pursuant to s. 21.1(1) of the Child, Youth and Family Enhancement Act (the “CYFEA”), in order to determine whether the child should remain with Children’s Services or be returned home while the investigation is carried out.
The Initial Custody Hearing is designed to be carried out expeditiously, however, these are understandably often very fraught proceedings. Parents and guardians want to do everything they can in order to put their best case forward even at the interim stage, in order to have their child(ren) returned home as soon as possible. It is not uncommon for both parties to want to present as much evidence as they can in order to bolster their position before the Court. However, courts in Alberta have been reluctant to allow either side to make lengthy arguments or present adequate expert evidence on their own behalf, due to time restrictions. Further, this position is not applied consistently by courts throughout the province, adding further confusion to the Initial Custody Hearing process for everyone involved.
S. 21.1(4) of the CYFEA provides that the Initial Custody Hearing is to be summary in nature, which has been interpreted at common law to mean that it should be “short, concise and immediate”. Given this, judges will not typically allow for the presentation of significant amounts of expert or other evidence, and may even limit evidence to affidavits only.
This can have a serious impact on parents and guardians who are desperate to establish reasons for their child(ren) to be returned home during the course of any investigations. However, these principles are not being applied consistently throughout the province, which creates confusion and inconsistencies in results depending on the court and jurisdiction.
While some courts have held that the Initial Custody Hearing is not a venue for hearing all the disclosure and evidence that will be presented at the final hearing for a Permanent Guardianship Order or Temporary Guardianship Order by either the Director or the parents/guardians (unreported case of D.F. July 11, 2005 as quoted in Alberta (Director – CYFEA) v. T.L. 2013 ABPC 326), other courts seem to be extending more time for evidence and disclosure.
For example, in the case of Re Ho 2019 ABCA 212, the Initial Custody Hearing was heard over almost two full days with both the Director and the parents calling several witnesses. The hearing was described as being a “dry run” of the full Permanent Guardianship Order hearing. In permitting the parties to proceed in this matter, the Court acknowledged that it was a difficult call for any trial Judge to restrict a party from calling evidence in a “hearing” of any kind.
The Court went on to hold that when dealing with multiple witnesses testifying in an Initial Custody Hearing, conflicting facts ultimately had to be resolved during the full trial, with any conflicts in evidence for the purposes being resolved in favour of the Director. The only exception was where an early weighing of evidence was necessary to prevent a potential miscarriage of justice.
The lack of consistency throughout Alberta courts can be extremely frustrating for parents who just want to have the child back at home with them. They often face uncertainty in terms of how to proceed and feel that the courts are placing undue limitations on a matter with serious potential fallout for individual families and children. Any parent or guardian facing this daunting process should seek the counsel of an experienced family law lawyer who can provide guidance and determined advocacy throughout this process on their behalf.
The family law lawyers at Mincher Koeman have considerable experience helping families and guardians navigate the complex child protection process in Alberta. We understand how the system works, the challenges parents face, and we know how to effectively challenge or advocate at each stage. We also have worked extensively with Indigenous communities on a number of child protection issues specific to First Nations.
If your family has become involved in this process, or you are seeking guardianship of a child who is the subject of an intervention, please contact our office to discuss your options by calling us at 403-910-3000 or by contacting us online.
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