When the government intervenes in order to protect a child, the government acts under the authority of the Director of Child, Family and Community Service Act (the "Director").
In some cases, the intervention warrants a removal of the child. In such a case, the child is often placed in foster care or in the care of a family member. This is usually done in hopes that the parent can access services and address the problem. The Child, Family and Community Service Act ("CSCSA") requires the Director to choose the least intrusive measure. If the situation later improves and thus permitting the Director to return the child, the Director can only return the child to the "parent apparently entitled to custody".
Traditionally, the view was that if the parents were separated, the "parent apparently entitled to custody" was the parent from whom the child was removed. If the parents were together at the time of removal, then both of the parents could be the "parent apparently entitled to custody".
In March of 2013, the new Family Law Act came into force. It is of note that the term "custody" is not used in this Act.
The case of Director and L. et al, 2014 BCPC 284 gives us some clarity about the term within the context of separated parents. The following is a summary of the main points:
In short, this decision confirms that the Director should return to the family whenever possible and that the court may make the necessary orders under the FLA, such as awarding some interim parental responsibilities to the other parent, so that the child can be returned to the other parent.
Link to full case here: https://www.canlii.org/en/bc/bcpc/doc/2014/2014bcpc284/2014bcpc284.pdf