Protection hearing

It’s a good idea to have a lawyer when you go to the protection hearing to present your case. See also Legal Help.

• Before you go to court, your lawyer can explain what’s likely to happen. Be sure you and your lawyer clearly understand what you want to ask the judge for.
• The social worker can apply for one of four types of orders. For more information, see Protection hearing. If the social worker gave you an application for a supervision order, read the terms and conditions. If you have any questions about the terms and conditions, ask your lawyer or the social worker before you go to court. If you don’t have a lawyer, you can also discuss your questions with family duty counsel at court.

Any time during the court process, you have the option to work out an agreement with the social worker, for free, through collaborative planning and decision making.

Before the judge can decide about the order the social worker applied for, the judge must first decide if your child needs protection or not.

• If you and the social worker both give written consent (agreement) about what happens at the protection hearing, then the judge doesn’t have to decide your child needs protection. This is very important. Speak to a lawyer about giving your written consent. The supervision or custody order can be made that day if everyone gives their consent.
• If you don’t agree with the application the social worker makes at the protection hearing, you can tell the judge you don’t agree. The next step is to have a case conference.

If you can’t reach an agreement with the social worker by the protection hearing, the judge orders you to go to a case conference. If you (or your lawyer) ask in writing to see information from the director’s files, you should get that information before the case conference.

• A case conference is a lot like mediation except the judge is in charge instead of a mediator and the case conference usually takes less time. It’s a meeting with you, your lawyer or advocate, the social worker and their lawyer, and the judge. If your child is Indigenous, a representative of the Indigenous community may also be there. For more information, see Collaborative planning and decision making.
• Be prepared to speak for yourself at a case conference. Judges usually want to hear directly from the parents. You may want to discuss what to say with your lawyer beforehand. The social worker can’t use what you say at the case conference against you in court. However, the social worker can try to use what you say to find out more information to use at a hearing.

Supervision orders or custody orders can’t be made at the case conference unless everyone agrees. If you work out an agreement with the social worker in the case conference, the judge can make a consent order. That ends the protection hearing.

You can make a consent order with the social worker after a case conference or at any time during the protection hearing process.

If you and the social worker agree on a plan of care for your child, you can make a written agreement for one of the orders the judge may make. The judge then makes a consent order and doesn’t have to decide your child needs protection.

• The court won’t have in its records that you couldn’t care for your child or your child needed protection.
• If your child is 12 or older, they have the right to be part of the discussion about a consent order. If possible, get legal advice for your child. See also Legal Help.

In most cases, both parents have to agree before the judge can make a consent order. Get legal advice before you agree to a consent order.

If you weren’t able to come to an agreement with the social worker at the case conference, the judge arranges for a protection hearing. The hearing will likely take a day or more to complete.

At the hearing, the judge must hear evidence and witnesses before making (or refusing to make) the application the social worker asked for. The judge decides if your child needs protection, makes one of the following orders, and decides how long the order lasts.

• Temporary supervision order (child with parent): Your child lives with you, and the director supervises the care you give your child.
• Temporary supervision order (child with someone else): Your child lives with another person who can care for your child under the director’s supervision.
• Temporary custody order (child in foster care): Your child stays in the care of the director (foster care).
• Permanent transfer of custody to someone else: Your child stays in the permanent care of another person.
• Continuing custody order (child in foster care): If a serious problem exists and can’t be fixed within the time the court allows, the judge may make this order. It means your child stays in the care of the director (foster care) without limits on how long this lasts. By the time the matter is at this stage, parents usually have tried to work out other options for their children’s care, and judges don’t make this order as often.

The judge includes terms and conditions in the supervision order, and whether you get an access order and what’s in the access order if your child isn’t with you.

Supervision orders and custody orders are made for a specific time, called a fixed term. The length of the fixed term is based on your child’s age at the time of the removal, or the youngest child’s age if there’s more than one child. If your child is:

• under five, the order can last for up to three months
• five to under 12, the order can last for up to six months
• 12 or older, the order can last for up to 12 months

If a child is under a continuing custody order, get legal advice to:

• have the order cancelled,
• get access to the child,
• have the child adopted,
• appeal court decisions (see below), or
• permanently transfer custody of the child to someone else.

See also Legal Help.

You may be able to appeal a custody order if you think it’s unfair — that is, you can ask another judge to decide if the order is fair.

If you want to appeal a decision, get legal advice immediately because you have only 30 days after a protection hearing to appeal an order. These time limits are very strict.

You can also apply to change an order if you make big changes in your life. This is different from appealing an order. For example, you may have had counselling that helped you with an anger problem or an addiction. Or you may have changed your housing or left an abusive relationship. If you made a life change, you can ask to change an order any time after the judge makes it. Get a lawyer’s help to do this.

A judge considers your application and decides whether to make a new order or leave it the way it is.