CFCSA Case Law Library

To reveal applications of the Child Family and Community Service Act (CFCSA) in practice, the size of business opportunities to the legal services community and how lopsided case law is in favour of the Ministry of Children and Family Development (MCFD), related cases are categorized under the following types of litigation and archived in descending or reverse chronological order (the most recent case to appear first while the oldest case appears last). Cases in pink background are considered of more significant legal impact by us. Cases in blue background are decisions from the Supreme Court of Canada..

Links to various judgment database are provided for the ease of reference.

• Supreme Court of Canada
• Canadian Legal Information Institute (CanLII)
• B.C. Court of Appeal and Supreme Court
• B.C. Court Services Online

1. 20110302 "Director v. B. and B., 2011 BCPC 72" Docket: F10073, Registry: Chilliwack
   
   
   Synopsis: children removed due to a suspected shaken baby syndrome (SDS), no hearing was given until almost 3 years after the removal, parents went public and attracted retaliation, the judge rejected MCFD's theory of SDS, yet made a 3-month continuing custody order under Section 41(1)(c) in favour of the director (archived on May 10, 2011) ...


2. 20101221 "Director v. K.L.R., 2010 BCPC 342 (CanLII)" Docket: F8669, Registry: Abbotsford
   
   

   Synopsis: in a Section 49 continuing custody hearing, the following were brought to the court's attention:

   1. "child protection" workers speak on behalf of removed children in court and children are not allowed to speak directly in court (paragraph [28]);
   2. tension was built between a mother and her parents after MCFD intervention (paragraph [29] and [34]);
   3. "child protection" worker used access to children as a weapon to force parent to consent to Continuing Custody Order (paragraph [30]).
   4. the Director made his case on how the mother did not comply with the demands imposed, critical of the Director’s position of “three strikes, you’re out” and of how the Director has ceased any measure that would assist in reuniting the children with the mother (paragraph [40]).

   Despite that removed children were returned to their mother, the court did not punish "child protection" workers for abusing their power. Provincial court judges have no power to do so.

   (archived on 2 October 2011) ...


3. 20051007 "Director v. M.P., 2005 BCPC 651" Docket: 2005-19226, Registry: Vancouver
   
   

   Synopsis: in a presentation hearing, temporary custody order made in favour of director when:

   1. there is no third party complaint;
   2. the director needs not to show that the child is in immediate danger; or
   3. the removal is in the best interests of the child

   (archived on May 10, 2011) ...


4. 20050307 "Director of Child, Family and Community Service v. R.R. (R.A.) et al, 2005 BCSC 313" Docket: 14413, Registry: T.[…], B.C.
   
   Synopsis: MCFD appealed against a decision not to grant CCO on 4 children, the trial judge in the provincial court granted a 6-month supervision order instead, MCFD failed in the appeal, the original provincial court order was confirmed (archived on May 14, 2011) ...


5. 20010129 "British Columbia (Director of Child, Family and Community Services) v. G.(R.), 2001 BCPC 32" Docket: 92-3735, Registry: Vancouver
   
   

   Synopsis: judge defined what is considered and not considered in presentation hearing, she put the onus of proof on parents and erred on the side of caution and granted interim custody to the director (hence ensuring a prolonged separation between parent and children), alleging that foster care is a known safe place, cooperation with MCFD is an evaluating factor considered by court, access is recommended but not ordered (archived on May 10, 2011) ...


6. 20000417 "British Columbia (Director of Family and Child Services) v. R.(M.), 2000 BCPC 130" Docket: 9625, Registry: Quesnel
   
   
   Synopsis: two year old child received several bruises and elbow bone broken where the cause of the injuries was not always clear, MCFD has removed the child and relied heavily on the medical expert reports, the Director has placed Kaitlyn in the interim care of her father and he also has a custody application before the court under the Family Relations Act, the court found that no protection was needed and the child be returned to her mother as soon as possible (archived on June 9, 2011) ...


7. 19970604 "FRA/CFCSA - E. Children, 1997 BCPC 17" Docket: FRA No. 778 • CFCSA No. 836 • CFCSA No. 811, Registry: Masset
   
   
   Synopsis: continuing custody from the director and Family Relations Act (FRA) from the father applications for 9 children originally under the care of mother, CCO granted to director and FRA application declined, psychologist's report (in [69] the father's views of the foster parents, and his outspoken descriptions of the foster parent were considered a problem by the psychologist and the judge) was quoted in support of the court's decision (archived on May 10, 2011) ...


8. 19960419 "K.(T.E.) v. Superintendent of Family And Child Service, 1996 CanLII 2348 (BC SC)" Docket: F950822, Registry: Vancouver
   
   
   Synopsis: foster parents competing custody of removed children against their birth mother, MCFD supported the foster parents and will seek permanent custody if the birth mother is successful, the Supreme Court of British Columbia found that the children were in need of protection at the time of removal, birth mother failed to get sole custody and guardianship (archived on June 8, 2011) ...


19940505 "Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165" Docket: 23644, Registry: The Supreme Court of Canada


Synopsis: In 1992, parent obtained a provincial court order in Ontario obliging the Children's Aid Society (CAS) to return removed child, CAS obtained a stay of the order for return from the Court of Appeal pending appeal and a motion for the introduction of fresh evidence, the order for the return of the child to the mother was set aside and ordered that the child be made a Crown ward, without access, for the purposes of adoption, partly due to the new evidence (introduced by CAS) of the consistent and repeated assertions of the child that she regarded her foster family as her real family, that she did not want to see her birth mother, this case suggests the following:
1. "child protection" workers do not need to return children even if there is a provincial court order of return, apply for a stay of order and appeal are common legal tactics, hence rendering their power exceeding that of provincial court judges;
2. "child protection" statute and legal process are hopelessly lopsided against parents;
3. removed children are motivated to stay in foster care (often by way of the offer of money, vacation trips and toys) and to alienate their birth parents as the child's negative emotional, psychological and physical reactions are legal grounds (established by this case) of permanent removal
(archived on June 1, 2011) ...


19690212 "Mugford v. Children's Aid Society (Ottawa), [1969] S.C.R. 641" Docket: N/A, Registry: The Supreme Court of Canada


Synopsis: 19-year old unmarried mother gave custody consent to Children's Aid Society (CAS) of her infant child, she wanted her baby back 3 months after birth, CAS denied stating that the infant had been placed with adopting parents and that “we cannot disturb this arrangement”, after going through several rounds of legal battles, the highest court allowed the mother's appeal and returned the case to the Court of Appeal for consideration upon the merits in 1969 (archived on June 1, 2011) ...

Applications to Remove Parent's Legal Counsel

9. 20080421 "Director of Child Family and Community Service and T.T., 2008 BCPC 114" Docket: 13020, Registry: Port Coquitlam
   
   
   Synopsis: Director applied to remove counsel who acted for both the father and the children in a hearing for a supervision order alleging that children had not been made “parties to a proceeding” pursuant to s. 39(4) of the CFCSA, Court concluded that children did not have standing that would enable them to have counsel appear for them, Counsel was accused of behaviour that could be seen as exacerbating the relationship between the Children and the Ministry and was given a last chance to represent the father (archived on 18 February 2012) ...

   The following in this case are noteworthy:

   1. As indicated in paragraph [8], the scope of disqualification action sought by the Ministry broadened to removing counsel for the father at the commencement of argument. Such surprise tactics and non-disclosure of intent and information until hearings begin are common. The disturbing issue is that court allows these without complaint or reprimand.
   
   
   2. As indicated in paragraph [27], the court found that when counsel so closely aligned with the attitude of the father against the Director, that he may be unable to be effective as counsel for the father’s given the requirements of the legislation, and Counsel’s responsibilities as an officer of the court. This means that retaining a lawyer who shares the same attitude of parents may result in having the lawyer disqualified by court. Does it imply that parents are better off to retain lawyers who do not share the same attitude in child protection matters?

      It follows that a lawyer is ineffective as counsel for parents and his/her responsibilities as an officer of the court if he/she aligns with the attitude of the parents against the Director. This is another way of saying that if lawyers representing parents align with their clients' attitude against the Director, they may face disqualification from court. This presents a serious risk to the proper administration justice and has a substantial impact on the rights of both parents and lawyers at common law and under the Charter of Rights and Freedoms.

   
   

   Lawyers who speak against the industry and act for the best interests of their clients (parents) are disbarred, blacklisted, charged, some are jailed, ...

   3. Lawyers representing parents are at risk of persecution. The documentary on the left includes interviews of lawyers who were disbarred, blacklisted and prosecuted. In one extreme case, the adopted child of a lawyer representing parents was removed as retaliation after winning an appeal against child protection service. The reprimand received by the lawyer in this case is trivial compared with those in the documentary. This partially explains why many lawyers representing parents choose to collaborate with the Ministry in CFCSA proceedings and work with the Ministry to convince parents not to dispute.
   
   
   4. Inferentially argued in this case, confidentiality is not only used by politicians and bureaucrats to evade answering questions but also used by lawyers to force children retaining separate lawyers to represent them in child protection hearings (although representation of a separate counsel for the children is not a Ministry's objective in this case). This may appear reasonable on the surface. In reality, it serves to divide and conquer and introduce more stakeholders to extract funds from government rendering prompt and fair adjudication more difficult.
   
   
   5. Despite Section 70 of the CFCSA defines a right of children to be consulted and to express their views, according to their abilities, about significant decisions affecting them, the Ministry successfully argued that children have no standing before the Court that would entitle them to have their own counsel as they have not been named as parties, hence depriving children their rights. The Ministry became their mouthpiece and solely represented their "best interests". Court very rarely allows children to express their views in matters that significantly affect their well being.

Access Applications

10. 20101117 "C.F.C.S.A. v. J.F., 2010 BCPC 373" Docket: F28059, Registry: Surrey
    
    
    Synopsis: parents applied for access and permission to apply to cancel the continuing custody order, both applications were denied by court to facilitate adoption which is considered in the child's best interests (archived on May 10, 2011) ...



11. 19981001 "New Brunswick (Minister of Health and Community Services) v. L. (M.), [1998] 2 S.C.R. 534" Docket: 26321, Registry: The Supreme Court of Canada
    
    

    Synopsis: Parents have rights in order that they may fulfil their obligations towards their children, when they are relieved of all of their obligations, they lose the corresponding rights, including the right of access. After a permanent guardianship order is made, access is a right that belongs to the child, and not to the parents. The Court of Appeal did not recognize that the parents had a right of access; it simply allowed them to have access to the children. It used the expression “right” in the sense of permission. (archived on June 6, 2011) ...


12. 19970110 "B.S. (Re), 1997 BCPC 2" Docket: CFCSA 830, Registry: Nelson
    
    
    Synopsis: parents were ordered to undertake psychiatric assessment under Section 59 of the CFCSA after their children removed, mother applied for definition of access alleging unilateral termination of portions of her access, director urged court to interpret that access is at the discretion of the Ministry (archived on May 10, 2011) ...

Challenges Against Other Statues

13. 20120921 "Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45" Docket: 33981, Registry: The Supreme Court of Canada
    

    Synopsis: A Society whose objects include improving conditions for female sex workers in the Downtown Eastside of Vancouver and K, who worked as such for 30 years, launched a Charter challenge to the prostitution provisions of the Criminal Code. The chambers judge found that they should not be granted either public or private interest standing to pursue their challenge; the British Columbia Court of Appeal, however, granted them both public interest standing. The government appealed this decision. The Supreme Court of Canada held that the appeal should be dismissed with costs and concluded that granting public interest standing to a society will not only serve to enhance the principle of legality with respect to serious issues of direct concern to some of the most marginalized members of society, but it will also promote the economical use of scarce judicial resources. (archived on 23 September 2012) ...


14. 20090626 "A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181" Docket: 31955, Registry: The Supreme Court of Canada
    

    Synopsis: the highest court ruled as follows: Do ss. 25(8) and 25(9) of The Child and Family Services Act, S.M. 1985-86, c. 8, infringe s. 2(a) of the Canadian Charter of Rights and Freedoms? Yes. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? No. Do ss. 25(8) and 25(9) of The Child and Family Services Act, S.M. 1985-96, c. 8, infringe s. 7 of the Canadian Charter of Rights and Freedoms? Yes. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? No. (archived on May 10, 2011) ...


15. 20040130 "Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76" File No.: 29113, Registry: The Supreme Court of Canada
    
    

    Synopsis: Section 43 of Criminal Code justifying use of reasonable force by parents and teachers by way of correction of child or pupil upheld when challenged by the Canadian Foundation for Children, Youth and the Law (archived on May 10, 2011) ...

Damages Litigations

20170831 "J.P. v. British Columbia (Children and Family Development) 2017 BCCA 308" Docket: CA43000; CA43392, Registry: Court of Appeal for British Columbia, Vancouver


Synopsis: On appeal of J.P. v. British Columbia (Children and Family Development) 2015 BCSC 1216, the father applied to adduce fresh evidence that one of the mother’s “expert” witnesses called on the joint trial misrepresented her qualifications and credentials and ought not to have been permitted to give opinion evidence going to the central issue of whether the father sexually abused the children. Application to adduce fresh evidence on appeal granted. The finding of misfeasance in public office against the non-party social worker was also the product of procedural unfairness and, in any event, along with the other tort claims must be dismissed because there was no evidence to support the judge’s findings upon which they rested. (archived on 8 Dec 2017)


20150714 "J.P. v. British Columbia (Children and Family Development) 2015 BCSC 1216" Docket: S118923, Registry: The Supreme Court of B.C., Vancouver


Synopsis: The plaintiffs are JP (mother) and her 4 children who were wrongfully removed by MCFD. The Supreme Court held the Province liable for misfeasance, breach of the standard of care and breach of fiduciary duty on the part of the Director and her agents. (archived on 15 July 2015)


16. 20111018 "K.A.K. v. British Columbia, 2011 BCSC 1391" File No.: VI05-2992, Registry: The Supreme Court of B.C., Victoria
    
    
    Synopsis: The plaintiffs are six of the eleven children born to the defendants G.K. and M.H. They seek general and future pecuniary damages from the Province of British Columbia (the Crown) for the failure of the Ministry of Child and Family Development to remove them from their parents’ care when it was readily apparent that they were in need of protection. The Crown has admitted liability. This litigation is to determine the amount of damages. (Case aired in Abused children win $1 million from B.C., 19 October 2011 Vancouver Sun) (archived on 20 October 2011) ...
    

    MCFD did not lose. Taxpayers do.

    This case helps the child protection industry to justify their child removal activities. No law or government could prevent child abuse. Even if you give "child protection" workers more power, some parents will still abuse their children. Like alcohol and guns, there will be abuse as long as they exist. We are not saying that there is no child abuse or the government should do nothing. But the number of real child abuse is substantially less than what the industry would like to see in order to justify the budget allocated to buy their services.

    Our problem is on the corruption and the absolute power of CFCSA, which is oppressive, redundant and counter-productive. There are other laws that give the authorities sufficient power to separate abusive parents and vulnerable children based on good evidence and due process of law. For example, habitual drunkenness or any other form of vice, and thereby endangers the morals of the child or renders the home an unfit place for the child to be in is stipulated in Section 172 (1) of the Criminal Code. Police can arrest, the Crown can lay charge and parents can be separated from their children by way of bail condition. Social workers will then be given the opportunity to do what they are trained to do, ie. helping people, not playing secret police and god.

    This case illustrates the following:

    1. MCFD rarely admits responsibility. In this case, it generously does so up front as they know that this court decision would help them to acquire more power and money. After all, court awarded damages are from tax dollars, not from the assets of bureaucrats or service providers. Be mindful that their liability arose from failure to remove from the children's birth parents. If this is a litigation of abuse in foster homes, they will fight vigorously all the way to the Supreme Court of Canada on taxpayer's expense to protect the reputation of the industry, as evident in K.L.B. v. British Columbia, 2003 SCC 51, [2003] 2 S.C.R. 403.
    
    
    2. Bureaucrats are not liable in exercising their power and carrying out their duties. Taxpayers always indemnify and are often an indirect victim.
    
    
    3. Many children are removed due to parents' abuse of drug and alcohol, limited parenting abilities, poor judgment, resistance to ministry intervention and physical violence with each other (note not violence on children). Despite our horrendous view on substance abuse, are these grounds strong enough to justify removal? Is there any law in Canada that prohibits junkies from raising kids? No. CFCSA allows government to circumvent our charter right protection, the need of legislating law and take such intrusive measure without proper public consulting.
    
    
    4. It is noteworthy to emphasize that resistance to ministry intervention is cited as ground to remove children. This grants the Ministry formidable power to remove if parents dare to say no.
    
    
    5. This case proves the failure of MCFD's modus operandi to serve its alleged purpose of "protecting" children.
    
    
    6. CFCSA creates a legal duty that no government could duly carry out, hence open taxpayers to ongoing contingent liabilities.
    
    
    7. The true beneficiaries in this case are the lawyers representing both sides and the child protection industry as service providers now could use this case to aggrandize and lobby for more power and money.


17. 20031002 "K.L.B. v. British Columbia, 2003 SCC 51, [2003] 2 S.C.R. 403" File No.: 28612, Registry: The Supreme Court of Canada
    
    

    Synopsis: removed children were sexually abused in foster homes, the highest court held that the government had breached no fiduciary duty to the children, but was vicariously liable and in breach of a non-delegable duty of care in the placement and supervision of the children (archived on May 10, 2011) ...



Custody Competition Between MCFD and Foster/Adoptive Parents

18. 20091002 "N. K. v. British Columbia (Director, CFCSA), 2008 BCSC 1321" Docket: E082317, S080017, Registry: Vancouver Supreme Court
    
    
    Synopsis: foster parents, alleging bias against them, disputed MCFD's decision to discontinue the adoption process relying on the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, the Adoption Act, the CFCSA, their petition was dismissed with costs (archived on May 13, 2011) ...


19. 19971003 " British Columbia (Director of Child, Family and Community Service) v. S. (B.)" Docket: F970148, Registry: Vancouver Supreme Court of British Columbia
    
    

    Synopsis: a provincial court judge found that a child was in need of protection under the care of an adoptive mother and granted the Director custody for six months with liberal access of adoptive mother to be supervised at the discretion of the Director, the adoptive mother appealed the need of protection and the Director appealed the temporary custody order, the Supreme Court of British Columbia upheld the trial judge's decisions and dismissed appeals from both parties.

    This decision cited a judgment from the Honourable Judge Stansfield in H.L. (at para. 30) as follows:

    "I understand the ratio of Mr. Justice Hinkson's decision to be that if a child has suffered harm while in the care of her parents, in the absence of proof of a cause unrelated to the parents' care, the hearing judge must protect against the reasonable apprehension that the parents may have been the cause of the injury. The child must in that circumstance be understood to be in need of protection, and the hearing judge must move to the second stage of the inquiry under section 13(1)."

    This confirms that there is no assumption of innocence and the benefit of a doubt will never be given to parents in child protection hearings.

    (archived on June 8, 2011) ...

CFCSA and Judicial Review Procedure Act Litigations

The Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 is a powerful legislation to provide remedies to those affected by the abuse of power of non-compliance of established government procedures. Note that all applications under this Act must be brought by way of a petition proceeding in the Supreme Court, hence the issue of costs should be a consideration.

20. 20080429 "A.M. v. British Columbia (Director of Child, Family & Community Service)" Docket: CA035474, Registry: Vancouver Court of Appeal
    
    
    Synopsis: biological parent disputed access after MCFD obtained continuing custody alleging CFCSA changed the focus of child protection proceedings by providing for more open access by biological parents, and effectively invalidated the legal principles relating to access developed under the former Family and Child Services Act, R.S.B.C. 1980, c. 11, appeal was dismissed (archived on May 13, 2011) ...


21. 20060523 "Hein v. Director (CFCS) & Carroll, 2006 BCSC 818" Docket: 0526252, Registry: Prince George
    
    Synopsis: biological mother applied for an order pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 to prohibit the MCFD Director from placing her three infant children in the care of the Florida Department of Children's Services or any other government agency until the completion of a protection hearing, the Supreme Court of British Columbia found that the MCFD has no authority to do so (archived on May 14, 2011) ...