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What Is The Meaning of "Parent Apparently Entitled To Custody" Under The Child, Family and Community Service Act?

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: 

  • The CFCSA uses the term "custody". The Family Law Act ("FLA") does not use the term "custody". The term "custody" under the CFCSA certainly includes anyone who has the care and "guardianship" of the child. 
  • If a parent does not explicitly have "guardianship" rights as set out in a court order, a parent may still be deemed to have "guardianship" rights under the FLA. 
  • A parent is not required have the right of "primary residency" (presumably ordered under the Family Relations Act, FLA, or Divorce Act) in order to be a "parent apparently entitled to custody" under the CFCSA. It is probably enough for a parent to have the rights of "guardianship", at least some rights of "parental responsibilities", and at least some rights of "parenting time" under the FLA. 
  • In the absence of any court orders, the court will assess the history between the parties and whether one parent was actually providing the primary care of the child, or whether the parents were sharing the care of the child. 
  • In the event that the parents were sharing the care of the child, then the Director can return to other parent (i.e., the parent from whom the child was not removed from). 
  • Importantly, as the court stated at para 16, "[o]n review of the cases, it seems that what constitutes a parent apparently entitled to custody is not predicated so much upon who has primary residence or even who has primary care, but upon the specific facts of the case". 

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

Written by
Mark J. Chiu
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