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On 14 July 2015, the Supreme Court of B.C. handed down an unprecedented judgment J.P. v. British Columbia (Children and Family Development), 2015 BCSC 1216. This is the first case in Canadian legal history in which child protection workers are found liable for misfeasance in public office, breach of fiduciary duty and breach of the standard of care. Findings therein confirm our views and support the merit of our cause. Continuous litigations between JP and the MCFD are summarized in JP Aftermath. Our commentary on the Plecas Review Part 1: Decision Time was published on 4 January 2016. If you have evidence of misfeasance or abuse of children in foster care, please come forward and contact us.
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Qp Date

Child, Family and Community Service Act

[RSBC 1996] CHAPTER 46

Contents
Part 1 — Introductory Provisions
1 Definitions and interpretation
2 Guiding principles
3 Service delivery principles
4 Best interests of child
Part 2 — Family Support Services and Agreements
5 Support services for families
6 Voluntary care agreements
7 Special needs agreements
8 Agreements with child's kin and others
9–10 Not in force. Repealed.
11 Capacity to make agreements and enforceability of agreements
12 Agreements do not limit court's power
Part 2.1 — Youth Transitional Support Services and Agreements
12.1 Support services for youth
12.2 Agreements with youth
12.3 Agreements with young adults
Part 3 — Child Protection
Division 1 — Responding to Reports
13 When protection is needed
14 Duty to report need for protection
15 If a young child breaks the law
16 Finding out if a child needs protection
17 If director is denied access to child
18 If location of child is not disclosed
19 Orders for access or warrants may be obtained by telephone
Division 2 — Cooperative Planning and Dispute Resolution
20 Family conference
21 Plan of care
22 Mediation or other alternative dispute resolution mechanisms
23 Effect of family conference, mediation or other alternative dispute resolution mechanisms on court proceeding
24 Confidentiality of information
Division 3 — How Children are Protected
25 Unattended child
26 Lost or runaway child
27 Child in immediate danger
28 Child who needs to be protected from contact with someone
29 Child who needs necessary health care
29.1 If a supervision order is needed
30 Removal of child
31 Parents to be notified of child's removal
32 Care of child until an order is made at the presentation hearing
33 Returning the child before the presentation hearing
Division 4 — Child Protection Hearings and Orders
33.1 Timing and notice of presentation hearing about application for supervision order
33.2 Presentation hearing about application for supervision order
33.3 Nature of presentation hearing
34 Duty to attend and inform others of presentation hearing
35 Presentation hearing and orders
36 If an interim supervision order no longer protects the child
37 Arranging a subsequent hearing
38 Notice of protection hearing
39 Parties to proceeding
40 Protection hearing
41 Orders made at protection hearing
41.1 Content of supervision orders
42 Enforcement of supervision order after the protection hearing
42.1 Presentation hearing about enforcement of the supervision order
42.2 Subsequent hearing about enforcement of supervision order
43 Time limits for temporary custody orders
44 Extension of supervision orders and temporary orders
45 Total period of temporary custody
46 Supervision of child after temporary custody order ends
47 Effect of interim or temporary custody order
48 Withdrawing from a proceeding after the presentation hearing
Division 5 — Continuing Custody Hearings and Orders
49 Continuing custody hearing and orders
50 Effect of continuing custody order
51 Role of Public Guardian and Trustee
52 Director's duty to notify Public Guardian and Trustee
53 When continuing custody order ends
54 Cancellation of continuing custody order
54.1 Transfer of custody to a person who is not a parent
54.2 Effect of a transfer of custody under section 54.1
Division 6 — Related Orders
55 Access to child in interim or temporary custody of director or other person
56 Access to child in continuing custody of director
57 Changes to supervision, temporary custody and access orders
57.1 Access orders if application made under section 54.1
58 If child needs assistance of Public Guardian and Trustee
59 Psychiatric or medical examination orders
60 Consent orders
61 Custody of child during adjournments
62 Suspension of order transferring care or custody from director
63 Enforcement of custody order
Division 7 — Procedure and Evidence
64 Full disclosure to parties
65 If director is denied access to record
66 Hearings civil in nature and may be informal
67 Court may exclude child and decide how child's evidence is received
68 Evidence of others
69 Power to vary notice requirements and to make orders without notice
Part 4 — Children in Care
70 Rights of children in care
71 Out-of-home living arrangements
72 Repealed
Part 5 — Freedom of Information and Protection of Privacy
73 Definition
74 Freedom of Information and Protection of Privacy Act
75 Disclosure of information restricted
76 Who can act for a child
77 Exceptions to access rights
78 Repealed
79 Disclosure without consent
80 Repealed
Part 6 — Appeals and Reviews
81 Appeal to Supreme Court
82 Appeal to Court of Appeal
83–88 Repealed
89 Repealed
Part 7 — Administration
90 Minister's authority to make agreements
91 Designation of directors
92 Director's power to delegate
93 Other powers and duties of directors
93.1 Administrative reviews
93.2 Reviews relating to services
94 Agreements with caregivers
95 Repealed
95.1 Transfer to another director
96 Director's right to information
96.1 Transfer of director's records
Part 8 — Miscellaneous Provisions
97 Maintenance agreements and orders
98 Restraining orders
99 Supreme Court jurisdiction
100 Out-of-Province orders and agreements
101 Protection from liability
101.1 No reprisals because of review
102 Offences and penalties
103 Power to make regulations
104 Community tribunals
Part 9 — Transitional Provisions
105 Transition from former Act — general rule
106 Proceedings begun under the former Act
107 Orders made under the former Act
108 Agreements made under the former Act or Child Paternity and Support Act

Part 1 — Introductory Provisions

Definitions and interpretation

1 (1) In this Act:

"aboriginal child" means a child

(a) who is registered under the Indian Act (Canada),

(b) who has a biological parent who is registered under the Indian Act (Canada),

(b.1) who is a Nisga'a child,

(b.2) who is a treaty first nation child,

(c) who is under 12 years of age and has a biological parent who

(i) is of aboriginal ancestry, and

(ii) considers himself or herself to be aboriginal, or

(d) who is 12 years of age or over, of aboriginal ancestry and considers himself or herself to be aboriginal;

"aboriginal community" means an aboriginal community designated by the minister;

"care", when used in relation to the care of a child by a director or another person, means physical care and control of the child;

"caregiver" means a person with whom a child is placed by a director and who, by agreement with the director, has assumed responsibility for the child's day-to-day care;

"child" means a person under 19 years of age and includes a youth;

"child in care" means a child who is in the custody, care or guardianship of a director or a director of adoption;

"continuing custody order" means an order under section 41 (1) (d), 42.2 (4) (d) or (7) or 49 (4), (5) or 10 (a) placing a child in the continuing custody of a director;

"court" means the Provincial Court except where this Act provides otherwise;

"custody" includes care and guardianship of a child;

"designated representative", when used in relation to the Nisga'a Lisims Government, a treaty first nation, an Indian band or aboriginal community, means a representative designated in accordance with the regulations;

"director" means a person designated by the minister under section 91;

"director of adoption" means a person designated by the minister under the Adoption Act as a director of adoption;

"dwelling" means all or part of any premises, vehicle or vessel that is kept or occupied as a permanent or temporary residence;

"family conference" means a conference convened under section 20;

"family conference coordinator" means a person designated by a director for the purpose of convening family conferences;

"former Act" means the Family and Child Service Act, S.B.C. 1980, c. 11;

"guardianship" includes all the rights, duties and responsibilities of a parent;

"health care" means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health related purpose, and includes a course of health care;

"health care provider" includes a person licensed, certified or registered in British Columbia or in another province or state to provide health care;

"Indian band" means a band as defined in the Indian Act (Canada) and includes a band council;

"interim order" means an order made under section 28 (5.1), 33.2 (2), 35 (2) (a), (b) or (d), 36 (3) (a) or (b), 42.1 (6) or 98 (7.1);

"Nisga'a child" has the same meaning as in the Nisga'a Final Agreement;

"Nisga'a Final Agreement" has the same meaning as in the Nisga'a Final Agreement Act;

"Nisga'a Lisims Government" has the same meaning as in the Nisga'a Final Agreement;

"Nisga'a Nation" has the same meaning as in the Nisga'a Final Agreement;

"Nisga'a Village" has the same meaning as in the Nisga'a Final Agreement;

"parent" means

(a) the mother of a child,

(b) the father of a child,

(c) a person to whom custody of a child has been granted by a court of competent jurisdiction or by an agreement, or

(d) a person with whom a child resides and who stands in place of the child's mother or father

but does not include a caregiver or director;

"place of confinement" means

(a) a correctional centre, youth custody centre or other lawful place of confinement, or

(b) a Provincial mental health facility or psychiatric unit under the Mental Health Act;

"plan for independence" means a plan relating to a youth that

(a) contains the information required under section 12.2, and

(b) is prepared in accordance with the regulations;

"plan of care" means a plan relating to a child that

(a) contains the information required under the regulations, and

(b) is prepared in accordance with the regulations;

"police officer" means a person who

(a) under the Police Act is a provincial constable or municipal constable or has the powers of a provincial constable or municipal constable, or

(b) is a member of the military police of the Canadian Armed Forces;

"presentation hearing" means a hearing that a director is required by section 33.1 (1), 34 (1), 36 (2) (b) or 42.1 (1) to attend;

"protective intervention order" means an order made under section 28;

"remove" means to take a child into the care of a director under section 30, 36 or 42;

"residential service" means accommodation and associated supervision provided for a child in a foster home or other place away from the home of the child's parent;

"restraining order" means an order made under section 98;

"supervision order" means an order made under section 33.2 (2), 35 (2) (b) or (d), 36 (3) (b) (i), 41 (1) (a) or (b), (1.1) or (2.1), 42.2 (4) (a) or (c), 46 (3) or 49 (8) requiring a director to supervise a child's care, and includes any extension of or change to that order;

"temporary custody order" means an order made under section 41 (1) (b) or (c), 42.2 (4) (b) or (c) or 49 (7) (b) placing a child for a specified period in the custody of a director or another person, and includes any extension of or change to that order;

"treaty first nation", in relation to a treaty first nation child, means the treaty first nation of which the child is a treaty first nation child;

"youth" means a person who is 16 years of age or over but is under 19 years of age.

(2) A reference in this Act to an order made under a provision of this Act includes a reference to the corresponding order made by consent under section 60.

Part 2 — Family Support Services and Agreements

Voluntary care agreements

6 (1) A director may make a written agreement with a parent who has custody of a child and is temporarily unable to look after the child in the home.

(2) Under the agreement, the parent may give the care of the child to the director and delegate to the director as much of the parent's authority as guardian of the child's person as is required to give effect to the agreement.

(3) If possible, the director must

(a) find out the child's views about the agreement and take them into account, and

(b) explain the effect of the agreement to the child before the agreement is signed.

(4) Before making the agreement, the director must

(a) consider whether a less disruptive way of assisting the parent to look after the child, such as by providing available services in the child's own home, is appropriate in the circumstances, and

(b) consider whether the agreement is in the child's best interests.

(5) The agreement must include the following:

(a) a description of the plan of care for the child, including where the child will be placed;

(b) a promise by the director to keep the parent informed of the child's progress and to involve the parent in decisions affecting the child;

(c) a promise by the parent to maintain contact with the child, including the details of the contact.

(6) The initial term of the agreement must not exceed

(a) 3 months, if the child is under 5 years of age on the date the agreement is signed, or

(b) 6 months, in any other case.

(7) The agreement may be renewed but the total duration of all consecutive agreements with all directors, and all renewals to all agreements, relating to the same child must not exceed, from the date the first agreement was signed,

(a) 12 months, if the child or the youngest child who is the subject of the agreement was under 5 years of age on that date,

(b) 18 months, if the child or the youngest child who is the subject of the agreement was 5 years of age or over but under 12 years of age on that date, or

(c) 24 months, if the child or the youngest child who is the subject of the agreement was 12 years of age or over on that date.

(8) If the parent does not resume care of the child when the agreement ends, the term of the agreement is extended for 30 days despite subsections (6) and (7).

Part 2.1 — Youth Transitional Support Services and Agreements

Agreements with youth

12.2 (1) Subject to the regulations, a director may make a written agreement with a youth who needs assistance and who

(a) cannot, in the director's opinion, be re-established in the youth's family, or

(b) has no parent or other person willing or able to assist the youth.

(2) The agreement may provide for one or more of the following:

(a) residential, educational or other support services;

(b) financial assistance.

(3) The agreement must include a plan for independence that contains

(a) a description of the support services or financial assistance, or both, that are to be provided by the director,

(b) the goals to be met by the youth, and

(c) any other contents specified by regulation.

(4) Before making the agreement, the director must

(a) consider whether the agreement is in the youth's best interests, and

(b) recommend that the youth seek advice from an independent third party.

(5) The initial term of the agreement must not exceed 3 months, but the agreement may be renewed for terms of up to 6 months each.

(6) No agreement under this section continues beyond the youth's 19th birthday.

(7) An agreement made by a director under this section with a youth is enforceable against the youth.

(8) An agreement made by a director under this section with a youth does not limit the court's power to hear an application and make an order about the youth.

(9) For the purpose of this section, "youth" includes a person who

(a) is under 16 years of age, and

(b) is married or is a parent or expectant parent.

Part 3 — Child Protection

Division 1 — Responding to Reports

When protection is needed

13 (1) A child needs protection in the following circumstances:

(a) if the child has been, or is likely to be, physically harmed by the child's parent;

(b) if the child has been, or is likely to be, sexually abused or exploited by the child's parent;

(c) if the child has been, or is likely to be, physically harmed, sexually abused or sexually exploited by another person and if the child's parent is unwilling or unable to protect the child;

(d) if the child has been, or is likely to be, physically harmed because of neglect by the child's parent;

(e) if the child is emotionally harmed by the parent's conduct;

(f) if the child is deprived of necessary health care;

(g) if the child's development is likely to be seriously impaired by a treatable condition and the child's parent refuses to provide or consent to treatment;

(h) if the child's parent is unable or unwilling to care for the child and has not made adequate provision for the child's care;

(i) if the child is or has been absent from home in circumstances that endanger the child's safety or well-being;

(j) if the child's parent is dead and adequate provision has not been made for the child's care;

(k) if the child has been abandoned and adequate provision has not been made for the child's care;

(l) if the child is in the care of a director or another person by agreement and the child's parent is unwilling or unable to resume care when the agreement is no longer in force.

(1.1) For the purpose of subsection (1) (b) and (c) and section 14 (1) (a) but without limiting the meaning of "sexually abused" or "sexually exploited", a child has been or is likely to be sexually abused or sexually exploited if the child has been, or is likely to be,

(a) encouraged or helped to engage in prostitution, or

(b) coerced or inveigled into engaging in prostitution.

(2) For the purpose of subsection (1) (e), a child is emotionally harmed if the child demonstrates severe

(a) anxiety,

(b) depression,

(c) withdrawal, or

(d) self-destructive or aggressive behaviour.

Finding out if a child needs protection

16 (1) On receiving a report about a child under section 14, 15 or 27, a director must determine whether to refer the report to another director.

(1.1) If, under subsection (1), the director makes a determination to refer the report to another director,

(a) he or she must refer the report promptly, and

(b) the other director must assess the information in the report.

(1.2) If the director does not refer the report to another director, he or she must assess the information in the report.

(2) After the assessment, the director may

(a) offer support services and agreements to the child and family,

(b) refer the child and family to a community agency, or

(c) investigate the child's need for protection.

(3) The director must make all reasonable efforts to report the result of the investigation under subsection (2) (c) to

(a) the parent apparently entitled to custody of the child,

(b) the person who reported the information that led to the investigation, and

(c) any other person or community agency if the director determines this is necessary to ensure the child's safety or well-being.

(4) In addition, the director may report the result of the investigation to the child if he or she is capable of understanding the information.

(5) Subsections (3) and (4) do not apply

(a) if reporting the result of the investigation would, in the opinion of the director, cause physical or emotional harm to any person or endanger the child's safety, or

(b) if a criminal investigation into the matter is under way or contemplated.

If director is denied access to child

17 (1) On application by a director, the court may make an order under this section if

(a) there are reasonable grounds to believe a child needs protection,

(b) a person refuses

(i) to give a director access to the child, or

(ii) to provide a director with all the information known to the person that may assist the director in locating the child, and

(c) access to the child is necessary to determine if the child needs protection.

(2) In an order under this section, the court may do one or more of the following:

(a) authorize the director, a police officer or a person specified in the order to, by force if necessary, enter the premises or vehicle or board the vessel specified in the order and to search for the child;

(b) require a person to disclose all the information known to the person that may assist the director in locating the child;

(c) require a person to allow the director or another person to interview or to visually examine the child, or to do both;

(d) authorize the director to take the child away from the premises, vehicle or vessel for an interview or medical examination;

(e) authorize a medical practitioner or other health care provider to examine the child.

(3) The court may attach any terms or conditions to an order under this section.

(4) If the child is taken away from the premises, vehicle or vessel for an interview or medical examination, the director must return the child to the parent when the interview or medical examination is completed unless the director proceeds under section 30.

(5) At the request of a director, a police officer must assist in enforcing an order made under subsection (2).

Division 2 — Cooperative Planning and Dispute Resolution

Division 3 — How Children are Protected

Child in immediate danger

27 (1) A police officer may, without a court order, take charge of a child if the police officer has reasonable grounds to believe that the child's health or safety is in immediate danger.

(2) A police officer may, without a court order and by force if necessary, enter any premises or vehicle or board any vessel for the purpose of taking charge of a child under subsection (1) if

(a) the police officer has reasonable grounds to believe that the child's health or safety is in immediate danger, and

(b) a person denies the police officer access to the child or no one is available to provide access.

(3) On taking charge of the child, the police officer must immediately report the circumstances to a director and

(a) take the child to a director or to a person or place designated by a director, or

(b) with the approval of a director, return the child to the child's parent or take the child to a person designated by the parent.

(4) If the child is taken to a director or to a person or place designated by a director, the director may take charge of the child for up to 24 hours and must

(a) immediately make all reasonable efforts to notify the child's parent,

(b) investigate the circumstances, and

(c) look after the child while in the director's charge.

(5) The director must as soon as possible

(a) return the child to the parent, or

(b) place the child with a person at the request of the parent and with the consent of the other person,

unless the director proceeds under section 30.

(6) Section 25 (4) and (5) applies to the child while in the charge of the director.

Child who needs to be protected from contact with someone

28 (1) If there are reasonable grounds to believe that contact between a child and another person would cause the child to need protection under section 13 (1) (a) to (e) or (i), a director may apply to the court for a protective intervention order.

(2) At least 2 days before the date set for hearing the application, notice of the time, date and place of the hearing must be served on the following:

(a) the person against whom the order is sought;

(b) the child, if 12 years of age or over;

(c) the person with care of the child.

(2.1) The director must, if practicable, inform each parent of the time, date and place of the hearing unless

(a) the parent has already been served under subsection (2), or

(b) informing the parent would, in the director's opinion, cause physical or emotional harm to any person or endanger the child's safety.

(3) If satisfied that there are reasonable grounds to believe that contact between the child and another person would cause the child to need protection under section 13 (1) (a) to (e) or (i), the court may, in the child's best interests, do one or more of the following:

(a) prohibit the other person for a period of up to 6 months from contacting or interfering with or trying to contact or interfere with the child or from entering any premises or vehicle or boarding any vessel the child attends;

(b) prohibit the other person for a period of up to 6 months from residing with the child or from entering any premises or vehicle, or boarding any vessel, where the child resides, including any premises, vehicle or vessel that the other person owns or has a right to occupy;

(c) if the court thinks the other person may not comply with an order under paragraph (a) or (b), order that person to

(i) enter into a recognizance, with or without sureties, in an amount the court thinks necessary and reasonable,

(ii) report to the court, or to a person named by the court, for the period of time and at the times and places the court thinks necessary and reasonable, or

(iii) produce to the court, or to a person named by the court, any documents the court thinks fit;

(d) include any terms necessary to implement an order under paragraph (a), (b) or (c).

(3.1) In a protective intervention order, the court may include an order authorizing a police officer to arrest, without a warrant, the person against whom the protective intervention order is made if the police officer has reasonable grounds to believe that the person has contravened or is contravening the protective intervention order.

(3.2) An order under subsection (3.1) does not authorize entry into a dwelling for the purpose of arresting a person.

(3.3) On application by a director, the court may issue a warrant authorizing a police officer, subject to subsection (3.4) and by force if necessary, to enter any dwelling specified in the warrant for the purpose of arresting a person against whom a protective intervention order has been made if there are reasonable grounds to believe that that person

(a) has contravened or is contravening the order, and

(b) is or will be present in the dwelling.

(3.4) A police officer may not enter a dwelling specified in a warrant under subsection (3.3) unless, immediately before the entry, the police officer has reasonable grounds to believe that the person to be arrested is present in the dwelling.

(3.5) The court must include in a warrant issued under subsection (3.3) any terms the court considers advisable to ensure that entry into the dwelling is reasonable in the circumstances.

(3.6) A person arrested under an order made under subsection (3.1) or a warrant issued under subsection (3.3) must

(a) be taken, as soon as possible and if practicable within 24 hours after the arrest, before a justice to be dealt with according to law, or

(b) be released under section 38 (3) of the Offence Act, as though the person had been arrested under a warrant issued under that Act and the warrant had been endorsed under section 38 (2) of that Act.

(4) Before the protective intervention order expires, the director or the person against whom the order was made may apply to the court and the court may do one or more of the following:

(a) change the order;

(a.1) include an order under subsection (3.1);

(b) cancel the order;

(c) shorten the term of the order;

(d) extend the term of the order for one period of up to 6 months.

(5) At the request of a director, a police officer must assist in enforcing a protective intervention order.

(5.1) If a director has applied to a court for a protective intervention order under subsection (1) and the court has ordered an adjournment of the hearing, the court may make an interim order

(a) for the purposes described in subsection (3), and

(b) for the period from the adjournment of the hearing until the conclusion of the hearing.

(6) A protective intervention order may be made at any time, including before, at or after a presentation hearing or other hearing.

(7) In this section, "court" means the Supreme Court or the Provincial Court.

Returning the child before the presentation hearing

33 (1) Before a presentation hearing relating to the removal of a child under section 30, the director may return the child to the parent apparently entitled to custody if

(a) the director makes an agreement with the parent that the director considers adequate to protect the child,

(b) the director considers that circumstances have changed so that the child no longer needs protection,

(c) the director receives information that causes the director to believe the child does not need protection, or

(d) a less disruptive means of protecting the child becomes available.

(1.1) Before a presentation hearing relating to the removal of a child under section 36 or 42, the director may return the child to the parent or other person who, at the time of the removal, was caring for the child under a director's supervision, if

(a) the director is satisfied that circumstances have changed so that the order in force at the time of the removal is adequate to protect the child, or

(b) the director is, as a result of new information received after the removal, satisfied that the order in force at the time of the removal is adequate to protect the child.

(2) When a child is returned, the director must inform the parent in writing whether the director intends to withdraw from a proceeding under this Part or to take further steps under this Part.

(3) If the director does not intend to take further steps under this Part, the director must, within 7 days after the child's removal,

(a) present to the court a written report on the director's reasons for removing and returning the child, and

(b) provide a copy of the report to the child's parent and any person notified of the presentation hearing.

(4) If a director returns a child under subsection (1.1) and withdraws from a hearing referred to in that subsection, the order that was in force when the child was removed continues to apply.

Division 4 — Child Protection Hearings and Orders

If an interim supervision order no longer protects the child

36 (1) A director must, without any further court order, remove a child who is the subject of an interim order under section 33.2 (2), 35 (2) (b) or (d) or subsection (3) of this section if either or both of the following apply:

(a) the director has reasonable grounds to believe that the order no longer protects the child;

(b) the director has reasonable grounds to believe that a person has not complied with a term or condition of the order and a director is required by that order to remove the child if the person does not comply with that term or condition.

(2) The following provisions apply for the purposes of this section:

(a) section 30 (2) and (3) (entry powers and power to require assistance of police officer);

(b) section 34 (1) and (2) (duty to attend presentation hearing);

(c) [Repealed 1999-26-14.]

(2.1) The director must, if practicable, inform the following of the time, date and place of the presentation hearing relating to the child's removal under subsection (1):

(a) the child, if 12 years of age or over;

(b) each parent;

(c) any person made a party under section 39 (4);

(d) the Public Guardian and Trustee, if the parent apparently entitled to custody is under 19 years of age;

(e) the applicable aboriginal organization prescribed in the regulations for the purpose of this section, if the child is an aboriginal child, other than a Nisga'a child or a treaty first nation child;

(f) the Nisga'a Lisims Government, if the child is a Nisga'a child;

(g) the treaty first nation, if the child is a treaty first nation child.

(2.2) The director need not inform a person under subsection (2.1) if that would, in the director's opinion, cause physical or emotional harm to any person or endanger the child's safety.

(3) At the conclusion of the presentation hearing relating to the child's removal under subsection (1), the court must, as follows:

(a) if the court is not satisfied that the child was removed in accordance with this section, make an interim order

(i) that the child be returned to or remain with the parent or other person who, at the time of the removal, was caring for the child under a director's supervision, and

(ii) that the order in force at the time of the removal continue to apply, or

(b) if the court is satisfied that the child was removed in accordance with this section, make an interim order

(i) that the child be returned to or remain with the parent or other person who, at the time of the removal, was caring for the child under a director's supervision and that the child be under the director's supervision, or

(ii) that the child be in the custody of the director.

Notice of protection hearing

38 (1) At least 10 days before the date set for a protection hearing, notice of the time, date and place of the hearing must be served as follows:

(a) on the child, if 12 years of age or over;

(b) on each parent;

(c) if the child is registered or entitled to be registered as a member of an Indian band, on a designated representative of the band;

(c.1) if the child is a Nisga'a child, on a designated representative of the Nisga'a Lisims Government;

(c.2) if the child is a treaty first nation child, on a designated representative of the treaty first nation;

(d) if the child is neither a Nisga'a child nor a treaty first nation child and is neither registered nor entitled to be registered as a member of an Indian band but is an aboriginal child, on a designated representative of an aboriginal community that has been identified by

(i) the child, if 12 years of age or over, or

(ii) the parent who at the time of the child's removal was apparently entitled to custody, if the child is under 12 years of age;

(d.1) on any party to the proceeding in which the court made the existing order about the child;

(d.2) on a person who has an interim order for custody of the child under section 35 (2) (d);

(e) on any other person the court considers appropriate.

(2) The notice must specify the orders the director intends to request and include a copy of any plan of care the director intends to present to the court, unless the parent and any other person entitled to notice agree to wait until a later date for that information.

Parties to proceeding

39 (1) If the following persons appear at the commencement of the protection hearing, they are entitled to be parties at the hearing:

(a) each parent of the child;

(b) the director;

(c) if the child is an aboriginal child, other than a Nisga'a child or a treaty first nation child, the designated representative of the Indian band or aboriginal community who was served with notice of the hearing;

(d) if the child is a Nisga'a child, the designated representative of the Nisga'a Lisims Government who was served with notice of the hearing;

(d.1) if the child is a treaty first nation child, the designated representative of the treaty first nation who was served with notice of the hearing;

(e) a person who has an interim order for custody of the child under section 35 (2) (d).

(2) If a person referred to in subsection (1) (a), (b), (c), (d) or (d.1) appears at the commencement of a protection hearing or a person becomes a party under subsection (4), that person is entitled

(a) to notice of a hearing under section 42.2, 44, 46, 49, 55, 57 or 58 relating to the child, and

(b) to be a party at the hearing if the person appears.

(3) If the court orders under section 41 (1) (b) that the child be placed in the custody of a person other than the parent or a director, that person is entitled

(a) to notice of a hearing under section 42.2, 44, 46, 49, 55, 57 or 58 relating to the child, and

(b) to be a party at the hearing if the person appears.

(4) The court may order that a person be a party at any hearing.

Orders made at protection hearing

41 (1) Subject to subsection (2.1), if the court finds that the child needs protection, it must make one of the following orders in the child's best interests:

(a) that the child be returned to or remain in the custody of the parent apparently entitled to custody and be under the director's supervision for a specified period of up to 6 months;

(b) that the child be placed in the custody of a person other than a parent with the consent of the other person and under the director's supervision, for a specified period in accordance with section 43;

(c) that the child remain or be placed in the custody of the director for a specified period in accordance with section 43;

(d) that the child be placed in the continuing custody of the director.

(1.1) When an order is made under subsection (1) (b) or (c), the court may order that on the expiry of the order under subsection (1) (b) or (c) the child

(a) be returned to the parent, and

(b) be under the director's supervision for a specified period of up to 6 months.

(2) The court must not order under subsection (1) (d) that the child be placed in the continuing custody of the director unless

(a) the identity or location of a parent of the child has not been found after a diligent search and is not likely to be found,

(b) a parent is unable or unwilling to resume custody of the child, or

(c) the nature and extent of the harm the child has suffered or the likelihood that the child will suffer harm is such that there is little prospect it would be in the child's best interests to be returned to the parent.

(2.1) If an order was made under section 33.2 (2), the child has not been removed since that order was made and the court finds that the child needs protection, the court must order that the director supervise the child's care for a specified period of up to 6 months.

(3) The court may attach to an order under this section any terms or conditions recommended by the director to implement a plan of care.

Presentation hearing about enforcement of the supervision order

42.1 (1) No later than 7 days after the day a child is removed under section 42, the director must attend court for a presentation hearing.

(2) Subsection (1) does not apply if the director returns the child under section 33 (1.1) and withdraws from the presentation hearing.

(3) The director must inform the following of the date, time and place of the presentation hearing:

(a) the parent or other person who, at the time of the removal, had custody of the child under a director's supervision;

(b) the child, if 12 years of age or over;

(c) if practicable, the persons referred to in section 34 (3) (b), (c), (d), (e) and (f);

(d) any person made a party under section 39 (4).

(4) The director need not inform a person referred to in section 34 (3) (b), (c), (d), (e) or (f) if that would, in the director's opinion, cause physical or emotional harm to any person or endanger the child's safety.

(5) At the presentation hearing, the director must present to the court a written report that includes

(a) the circumstances that caused the director to remove the child, and

(b) an interim plan of care for the child, including, in the case of an aboriginal child, the steps to be taken to preserve the child's aboriginal identity.

(6) At the conclusion of the presentation hearing, the court must make

(a) an interim order that the child be in the custody of the director, or

(b) an interim order

(i) that the child be returned to or remain with the parent or other person who, at the time of the removal, had custody of the child under a director's supervision, and

(ii) that the order in force at the time of the removal continue to apply.

(7) When an interim order is made under subsection (6), the court must set a date, not more than 45 days after the conclusion of the presentation hearing, for a hearing to determine if the child was removed in accordance with section 42.

Subsequent hearing about enforcement of supervision order

42.2 (1) At least 10 days before the date set under section 42.1 (7), notice of the time, date and place of the hearing must be served on the following:

(a) the child, if 12 years of age or over;

(b) subject to paragraph (c), the persons who under section 39 are entitled to notice;

(c) if the supervision order was made under section 49 (8), the persons who under section 49 (3) are entitled to notice;

(d) unless already served under paragraph (b) or (c), a person referred to in section 42.1 (3) (a).

(2) If a person referred to in subsection (1) (b) to (d) appears at the commencement of the hearing, that person is entitled to be a party at the hearing.

(3) If not satisfied at the hearing that the child was removed in accordance with section 42, the court must order

(a) that the child be returned to or remain with the parent or other person who, at the time of the removal, had custody of the child under a director's supervision, and

(b) that the supervision order in force at the time of the removal continue to apply.

(4) Subject to subsection (7), if satisfied at the hearing that the child was removed in accordance with section 42 (1), the court must make one of the following orders in the child's best interests:

(a) that for a specified period in accordance with subsection (5) the child

(i) be returned to or remain with the parent or other person who, at the time of the removal, had custody of the child under a director's supervision, and

(ii) be under the director's supervision;

(b) that the child remain or be placed in the custody of the director for a specified period in accordance with section 43;

(c) that the child be placed in the custody of a person other than a person referred to in paragraph (a) for a specified period in accordance with section 43 and be under the director's supervision;

(d) that the child be placed in the continuing custody of the director unless that conflicts with section 41 (2).

(5) The total of the following periods must not exceed 12 months:

(a) the period during which the child is under a director's supervision before the child is removed under section 42 (1);

(b) the period specified in the order under subsection (4) (a) (ii).

(6) Subsection (5) does not apply to a supervision order made in respect of a child in the custody of a person other than the parent.

(7) If the court is satisfied at the hearing that the child

(a) was the subject of a supervision order under section 49 (8), and

(b) was removed in accordance with section 42 (1),

the court must consider the child's need for finality in determining custody, and in the child's best interests, order one of the following:

(c) that the child be placed in the continuing custody of the director if there is no significant likelihood that

(i) the circumstances that led to the child's removal will improve within a reasonable time, or

(ii) the parent will be able to meet the child's needs;

(d) an order referred to in subsection (4) (a), (b) or (c).

(8) The director may include in the evidence presented at a hearing under this section the transcript of a hearing held under section 49 with respect to the child.

Extension of supervision orders and temporary orders

44 (1) If the circumstances that caused the child to need protection are likely to improve within a reasonable time, the director may, before the order expires, apply to the court for an extension of

(a) a supervision order other than one made at a continuing custody hearing, or

(b) a temporary custody order.

(2) At least 10 days before the date set for hearing the application, notice of the time, date and place of the hearing must be served on

(a) the child, if 12 years of age or over,

(b) the persons who under section 39 are entitled to notice, and

(c) the Public Guardian and Trustee, if appointed guardian of the child's estate under section 58.

(3) If satisfied that the circumstances that caused the child to need protection are likely to improve within a reasonable time, the court may, in the child's best interests,

(a) extend the term of the supervision order specified in subsection (1) (a), but not beyond the period permitted under subsection (3.1), or

(b) extend the term of the temporary custody order, but not beyond the period permitted under section 45.

(3.1) The total period during which a child is under a director's supervision must not exceed 12 months, including the periods, if any, during which the child was under a director's supervision before being removed under section 42 (1).

(4) The time limit imposed under subsections (3) (a) and (3.1) does not apply to a supervision order made in respect of a child in the custody of a person other than a parent.

Effect of interim or temporary custody order

47 (1) A director who has custody of a child under an interim order or temporary custody order has the following rights and responsibilities unless they are limited by the court under subsection (3) of this section:

(a) to consent to health care for the child;

(b) to make necessary decisions about the child's education and religious upbringing;

(c) to exercise any other rights and to carry out any other responsibilities of a guardian of the child's person, except the right to consent to the child's adoption.

(2) Any other person who has custody of a child under an interim order or a temporary custody order has the same rights and responsibilities that a director has under subsection (1) unless they are limited by the court under subsection (3).

(3) When an interim order is made under section 35 (2) (a) or (d) or 42.1 (6) or a temporary custody order is made, the court may, in the child's best interests, order that the parent retain either or both of the following rights:

(a) to consent to health care for the child;

(b) to make necessary decisions about the child's education and religious upbringing.

(4) Neither subsection (1) (a) nor an order under subsection (3) (a) affects a child's right under section 17 of the Infants Act to consent to health care.

(5) No order may be made under subsection (3) (a) if the parent's failure to consent to health care was a reason for removing the child or for finding that the child needed protection.

(6) If a parent who retains the right to consent to health care for a child is unavailable or unable to consent to health care that is essential to preserve the child's life or to prevent serious or permanent impairment of the child's health, the director may consent instead of the parent.

Division 5 — Continuing Custody Hearings and Orders

Continuing custody hearing and orders

49 (1) Not sooner than 60 days before a temporary custody order expires, the director may apply to the court for a continuing custody order.

(2) At least 10 days before the date set for hearing the application, notice of the time, date and place of the continuing custody hearing must be served as follows:

(a) on the child, if 12 years of age or over;

(b) on each parent;

(c) if the child is registered or entitled to be registered as a member of an Indian band, on a designated representative of the band;

(c.1) if the child is a Nisga'a child, on a designated representative of the Nisga'a Lisims Government;

(c.2) if the child is a treaty first nation child, on a designated representative of the treaty first nation;

(d) if the child is neither a Nisga'a child nor a treaty first nation child and is neither registered nor entitled to be registered as a member of an Indian band but is an aboriginal child, on a designated representative of an aboriginal community that has been identified by

(i) the child, if 12 years of age or over, or

(ii) the parent, if the child is under 12 years of age;

(d.1) any person who has been made a party under section 39 (4);

(d.2) any person who has custody of the child under section 41 (1) (b) or 42.2 (4) (c);

(e) on the Public Guardian and Trustee, if appointed guardian of the child's estate under section 58.

(3) If the persons referred to in subsection (2) (b) to (d.2) appear at the continuing custody hearing, they are entitled

(a) to be parties at the hearing, and

(b) to notice of a hearing under section 42.2, 54, 56 or 57 and, if they appear at the hearing, to be a party at that hearing.

(4) The court must order that the child be placed in the continuing custody of the director if

(a) the identity or location of a parent of the child has not been found after a diligent search and is not likely to be found, or

(b) a parent is unable or unwilling to resume custody of the child.

(5) The court may order that the child be placed in the continuing custody of the director if there is no significant likelihood that

(a) the circumstances that led to the child's removal will improve within a reasonable time, or

(b) the parent will be able to meet the child's needs.

(6) Before making a continuing custody order under subsection (5), the court must consider

(a) the past conduct of the parent towards any child who is or was in the parent's care,

(b) the plan of care, and

(c) the child's best interests.

(7) If the court does not make a continuing custody order, it must make one of the following orders:

(a) that the child be returned to the custody of the parent apparently entitled to custody;

(b) that the child remain in the temporary custody of the director or a person other than the parent for a specified period of up to 6 months.

(8) If the court orders that the child be returned to the parent's custody or remain in the custody of a person other than the parent, it may order that the director supervise the child's care for a specified period of up to 6 months.

(9) Not sooner than 60 days before a temporary custody order under subsection (7) (b) expires, the director may apply to the court for a continuing custody order.

(10) If the director applies under subsection (9), the court after considering the factors in subsection (6) must make one of the following orders:

(a) that the child be placed in the continuing custody of the director;

(b) that the child be returned to the parent apparently entitled to custody.

Transfer of custody to a person who is not a parent

54.1 (1) Subject to subsection (1.1), a director may apply to the court to permanently transfer the custody of a child who is in the custody of the director under a continuing custody order to a person other than the child's parent.

(1.1) An application under subsection (1) must not be made unless

(a) the continuing custody order was made by consent,

(b) the time limit under section 81 (2) in relation to the continuing custody order has expired and no extension under section 81 (8) has been granted, or

(c) all appeals related to the continuing custody order have been heard and the continuing custody order has been upheld.

(2) At least 10 days before the date set for hearing the application, notice of the hearing must be served on the following:

(a) each person to whom the court has been requested under subsection (1) to transfer custody;

(b) the child, if 12 years of age or over;

(c) if the child is registered or entitled to be registered as a member of an Indian band, a designated representative of the band;

(d) if the child is a Nisga'a child, a designated representative of the Nisga'a Lisims Government;

(d.1) if the child is a treaty first nation child, a designated representative of the treaty first nation;

(e) if the child is neither a Nisga'a child nor a treaty first nation child and is neither registered nor entitled to be registered as a member of an Indian band but is an aboriginal child, a designated representative of an aboriginal community that has been identified by

(i) the child, if 12 years of age or over, or

(ii) the parent, if the child is under 12 years of age;

(f) the Public Guardian and Trustee;

(g) each person who has access to the child under an order made under section 56 (3).

(3) Subject to subsection (4), a court may permanently transfer custody of a child from the director to a person other than the child's parent if

(a) the persons referred to in subsection (2) (a), (b) and (f) have consented to the transfer of custody, and

(b) the court is satisfied that it is in the child's best interests.

(4) A court may rely on the consent given under subsection (3) by persons referred to in subsection 2 (a) and (b) if the court is satisfied that each person

(a) has been advised to consult with independent legal counsel before signing the consent,

(b) understands the nature and consequences of the consent, and

(c) has given voluntary consent to the order transferring custody under this section.

Division 6 — Related Orders

Access to child in interim or temporary custody of director or other person

55 (1) At the time an order, other than a continuing custody order or an order made under section 54.1, is made under this Part, the parent who had custody when the child was removed may apply to the court for access to the child.

(2) After an order, other than a continuing custody order or an order made under section 54.1, is made under this Part, any person may apply to the court for access to the child.

(3) At least 10 days before the date set for hearing an application under subsection (2), notice of the hearing must be served on

(a) the child, if 12 years of age or over,

(b) the director, and

(c) in addition

(i) if the application is made before the protection hearing, the persons mentioned in section 34 (3) (b), (d), (e) and (f), and

(ii) if the application is made after the protection hearing, the persons who under section 39 are entitled to notice.

(4) If the parent who had custody when the child was removed applies under subsection (1) or (2), the court must order that the parent be given access to the child unless the court is satisfied access is not in the child's best interests.

(5) If a person, other than the parent who had custody when the child was removed, applies under subsection (2), the court may order that the person be given access to the child unless the court is satisfied access is not in the child's best interests.

(6) The court may attach to an access order under this section or section 56 any reasonable terms or conditions.

Changes to supervision, temporary custody and access orders

57 (1) If circumstances have changed significantly since the order was made, any party may apply to the court for a change to

(a) a supervision order other than one that is an interim order,

(b) a temporary custody order, or

(c) an access order.

(2) At least 10 days before the date set for hearing the application, notice of the hearing must be served on

(a) the child, if 12 years of age or over,

(b) the director,

(c) the Public Guardian and Trustee, if the order is a temporary custody order and the Public Guardian and Trustee has been appointed guardian of the child's estate under section 58, and

(d) in addition,

(i) if the application is for an access order and is made before the protection hearing, the persons mentioned in section 34 (3) (b), (d), (e) and (f), and

(ii) if the application is for any order referred to in subsection (1) of this section and is made after the protection hearing, the persons who under section 39 or 49 (3) are entitled to notice.

(3) If the court finds that circumstances have changed significantly since the order was made, the court, in the child's best interests, may cancel the order and make no other order or may cancel the order and do one of the following:

(a) if the order was made under section 42.2, 44 or 46, make an order under section 41;

(b) in any other case, make any order provided for at the hearing where the order was made.

(4) If the court finds that circumstances have not changed significantly since the order was made, the court may confirm the order.

(5) This section does not apply if the change of circumstances relates to an application to transfer custody under section 54.1, whether or not custody is transferred under that section.

Consent orders

60 (1) With the written consent of the following, the court may, at any time after a presentation hearing, make any custody or supervision order that is provided for in this Part, other than a transfer of custody under section 54.1, but including a continuing custody order:

(a) the director;

(b) the child, if 12 years of age or over;

(c) each parent of the child;

(d) if the child is to be placed for a specified period in the custody of a person other than a director, that person;

(d.1) any person who has been made a party under section 39 (4);

(e) if the child is an aboriginal child, the person who is or would have been entitled under section 38 (1) (c), (c.1), (c.2) or (d) to notice of any protection hearing concerning the child.

(2) Despite any other provision of this Act, the court may make an order under this section without a hearing, the completion of a hearing or the giving of evidence, but it must be satisfied that each person whose consent is required, other than those mentioned in subsection (1) (a) and (e)

(a) has been advised to consult with independent legal counsel before signing the consent,

(b) understands the nature and consequences of the consent, and

(c) has given voluntary consent to the order sought.

(3) The court may dispense with any consent required under subsections (1) and (6), if the court considers it in the child's best interests to do so.

(4) An order may be made under this section without the court finding that the child needs protection.

(5) A consent by a parent to an order under this section is not an admission by the parent of any grounds alleged by a director for removing the child.

(6) In addition to its powers under subsection (1) and subject to subsection (7), the court may, with the written consent of the parties, make any other order mentioned in this Act, including a transfer of custody under section 54.1.

(7) An order under subsection (6) to transfer custody under section 54.1 must not be made unless

(a) the continuing custody order was made by consent,

(b) the time limit under section 81 (2) in relation to the continuing custody order has expired and no extension under section 81 (8) has been granted, or

(c) all appeals related to the continuing custody order have been heard and the continuing custody order has been upheld.

Division 7 — Procedure and Evidence

Part 4 — Children in Care

Rights of children in care

70 (1) Children in care have the following rights:

(a) to be fed, clothed and nurtured according to community standards and to be given the same quality of care as other children in the placement;

(b) to be informed about their plans of care;

(c) to be consulted and to express their views, according to their abilities, about significant decisions affecting them;

(d) to reasonable privacy and to possession of their personal belongings;

(e) to be free from corporal punishment;

(f) to be informed of the standard of behaviour expected by their caregivers and of the consequences of not meeting their caregivers' expectations;

(g) to receive medical and dental care when required;

(h) to participate in social and recreational activities if available and appropriate and according to their abilities and interests;

(i) to receive the religious instruction and to participate in the religious activities of their choice;

(j) to receive guidance and encouragement to maintain their cultural heritage;

(k) to be provided with an interpreter if language or disability is a barrier to consulting with them on decisions affecting their custody or care;

(l) to privacy during discussions with members of their families, subject to subsection (2);

(m) to privacy during discussions with a lawyer, the representative or a person employed or retained by the representative under the Representative for Children and Youth Act, the Ombudsperson, a member of the Legislative Assembly or a member of Parliament;

(n) to be informed about and to be assisted in contacting the representative under the Representative for Children and Youth Act, or the Ombudsperson;

(o) to be informed of their rights, and the procedures available for enforcing their rights, under

(i) this Act, or

(ii) the Freedom of Information and Protection of Privacy Act.

(2) A child who is removed under Part 3 is entitled to exercise the right in subsection (1) (l), subject to any court order made after the court has had an opportunity to consider the question of access to the child.

(3) This section, except with respect to the Representative for Children and Youth as set out in subsection (1) (m) and (n), does not apply to a child who is in a place of confinement.

Part 5 — Freedom of Information and Protection of Privacy

Freedom of Information and Protection of Privacy Act

74 (1) Sections 74 to 79 apply despite the Freedom of Information and Protection of Privacy Act.

(2) For the purpose of its application to this Act, the Freedom of Information and Protection of Privacy Act is deemed to be modified as follows:

(a) a reference to "head" includes, with respect to a record, the director who has custody or control;

(b) a reference to "public body", where a power, function or duty is not conferred on the head of the same public body, includes, with respect to a record, the director who has custody or control;

(c) the authority for a public body to collect personal information indirectly under section 27 (1) (b) includes the authority to collect personal information indirectly when the information may be disclosed to the public body under section 79 of this Act;

(d) the authority for a public body to use personal information under section 32 (c) includes the authority to use personal information for a purpose for which that information may be disclosed to the public body under section 79 of this Act;

(e) the only provisions of sections 33.1 and 33.2 that apply to a director are the following:

(i) section 33.1 (1) (a) [in accordance with Part 2 of the Act];

(ii) section 33.1 (1) (b) [individual consent];

(iii) section 33.1 (1) (o) [archival and historical purposes];

(iv) section 33.2 (j) [in Canada — archives];

(v) section 33.2 (k) [in Canada — research];

(f) the powers of the commissioner apply to the exercise of a director's powers, duties and functions under the Freedom of Information and Protection of Privacy Act, subject to this section.

Part 6 — Appeals and Reviews

Part 7 — Administration

Other powers and duties of directors

93 (1) A director may do one or more of the following:

(a) provide preventive and support services for families to promote the purposes of this Act;

(b) make payments to a parent, or other person who has care of a child with special needs, to assist the parent or other person to purchase support services, other than health and medical benefits, so that the child can reside at home;

(c) [Repealed 1999-26-32.]

(d) establish residential services for children and youths;

(e) establish services to assist in the resolution of family disputes;

(f) establish services to assist communities to strengthen their ability to care for and protect their children;

(g) make agreements, including but not limited to agreements

(i) with any person for the provision of residential or other services,

(ii) with a person who has custody by an interim order or a temporary custody order under Part 3 or by an order made under section 54.1, for contributions to the child's support,

(iii) with the Nisga'a Nation, a Nisga'a Village, a treaty first nation, an Indian band or a legal entity representing an aboriginal community for the provision of services,

(iv) with the government of Canada, the government of a province of Canada or the government of a jurisdiction outside Canada, or an official or agency of any of those governments, to promote the purposes of this Act,

(v) with any ministry of the government or any community agency if an agreement is necessary to integrate the planning and delivery of preventive and support services to families and children, and

(vi) with other directors;

(h) promote and encourage the participation of the community in the planning, development and delivery of services.

(2) A director is authorized to receive any authority that

(a) is delegated to the director by a government or child welfare authority, and

(b) relates to a child in the custody or under the guardianship of that government or child welfare authority.

(3) and (4) [Repealed 2007-5-3.]

Part 8 — Miscellaneous Provisions

Maintenance agreements and orders

97 (1) A parent remains responsible to contribute to the maintenance of

(a) a child in care unless the child in care is under a continuing custody order,

(b) a child in the custody of a person other than a parent under an interim order or a temporary custody order,

(c) a youth who has made an agreement with a director under section 12.2, and

(d) a child about whom an agreement is made under section 8 (1).

(2) A director may make a written agreement with a parent for contributions by the parent to the maintenance of the following, as applicable:

(a) a child in care unless the child in care is under a continuing custody order;

(b) a youth referred to in subsection (1) (c);

(c) a child referred to in subsection (1) (d).

(3) A director may file an agreement made under subsection (2) in the court.

(4) The agreement, if filed, has the same effect and may be enforced, changed or cancelled in the same manner and on the same basis as a maintenance order made under the Family Relations Act.

(5) On application by a director, the court may order a parent who is responsible to contribute under subsection (1) to pay to the director or to a person designated in the order an amount the court considers reasonable for the maintenance of a child or youth.

(6) At least 10 days before the date set for hearing an application for a maintenance order, notice of the time, date and place of the hearing must be served on the parent against whom the order is sought.

(7) In making a maintenance order, the court must take the following into account:

(a) the needs, means, capacity and economic circumstances of the parent;

(b) the needs, means and circumstances of the child or youth;

(c) any legal right of the child or youth to receive support from another source;

(d) any other circumstance the court considers relevant.

(8) A maintenance order made under this section may

(a) include one or more of the terms mentioned in section 93 (5) of the Family Relations Act, and

(b) be enforced, changed or cancelled in the same manner and on the same basis as an order made under that Act.

Restraining orders

98 (1) On application, the court may make a restraining order if there are reasonable grounds to believe that a person

(a) has encouraged or helped, or is likely to encourage or help, any of the following to engage in prostitution:

(i) a child in care;

(ii) a child in the custody of a person under a temporary custody order;

(iii) a youth who has made an agreement with a director under section 12.2,

(b) has inveigled or coerced, or is likely to inveigle or coerce, a child or youth mentioned in subparagraph (i), (ii) or (iii) of paragraph (a) into engaging in prostitution, or

(c) has otherwise exploited, abused or intimidated, or is likely to otherwise exploit, abuse or intimidate, a child or youth mentioned in subparagraph (i), (ii) or (iii) of paragraph (a).

(2) In a restraining order under subsection (1), the court may do one or more of the following:

(a) prohibit the person for a period of up to 6 months from contacting or interfering with or trying to contact or interfere with the child or youth or from entering any premises or vehicle or boarding any vessel that the child or youth attends;

(b) prohibit the person for a period of up to 6 months from residing with the child or youth or from entering any premises or vehicle, or boarding any vessel, where the child or youth resides, including any premises, vehicle or vessel that the person owns or has a right to occupy;

(c) if the court thinks that the person may not comply with an order under paragraph (a) or (b), order that person to

(i) enter into a recognizance, with or without sureties, in an amount the court thinks necessary and reasonable,

(ii) report to the court, or to a person named by the court, for the period of time and at the times and places the court thinks necessary and reasonable, or

(iii) produce to the court, or to a person named by the court, any documents the court thinks fit.

(3) On application, the court may make a restraining order if there are reasonable grounds to believe that a person is likely to molest, harass or annoy

(a) a caregiver,

(b) a person who has custody of a child under a temporary custody order,

(c) a director or any person to whom the director has delegated under section 92 any or all of the director's powers, duties or functions, or

(d) a person providing residential, educational or other support services to the child or youth.

(4) In a restraining order under subsection (3), the court may

(a) prohibit for a period of up to 6 months the person against whom the order is made from contacting or interfering with, or trying to contact or interfere with, the person in whose favour the order is made, and

(b) if the court thinks that the person against whom the order is made may not comply with an order under paragraph (a), order that person to do anything referred to in subsection (2) (c).

(4.1) In a restraining order, the court may include an order authorizing a police officer to arrest, without a warrant, the person against whom the restraining order is made if the police officer has reasonable grounds to believe that the person has contravened or is contravening the restraining order.

(4.2) An order under subsection (4.1) does not authorize entry into a dwelling for the purpose of arresting a person.

(4.3) On application by a director, the court may issue a warrant authorizing a police officer, subject to subsection (4.4) and by force if necessary, to enter any dwelling specified in the warrant, for the purpose of arresting a person against whom a restraining order has been made if there are reasonable grounds to believe that that person

(a) has contravened or is contravening the order, and

(b) is or will be present in the dwelling.

(4.4) A police officer may not enter a dwelling specified in a warrant under subsection (4.3) unless, immediately before the entry, the police officer has reasonable grounds to believe that the person to be arrested is present in the dwelling.

(4.5) The court must include in a warrant issued under subsection (4.3) any terms the court considers advisable to ensure that entry into the dwelling is reasonable in the circumstances.

(4.6) A person arrested under an order made under subsection (4.1) or a warrant issued under subsection (4.3) must

(a) be taken, as soon as possible and if practicable within 24 hours after the arrest, before a justice to be dealt with according to law, or

(b) be released under section 38 (3) of the Offence Act, as though the person had been arrested under a warrant issued under that Act and the warrant had been endorsed under section 38 (2) of that Act.

(5) The court may include in a restraining order any terms or conditions needed to implement the order.

(6) At least 2 days before the date set for hearing an application for a restraining order, notice of the time, date and place of the hearing must be served on the following:

(a) the person against whom the order is sought;

(b) the child, if the child is 12 years of age or over;

(c) the director.

(6.1) Before a restraining order expires, the person who applied for the order, the person against whom the order was made or the director may apply to the court and the court may do one or more of the following:

(a) change the order;

(b) include an order under subsection (4.1);

(c) cancel the order;

(d) shorten the term of the order;

(e) extend the term of the order.

(7) At the request of a director, a police officer must assist in enforcing a restraining order.

(7.1) If a director or another person has applied for a restraining order under subsection (1) or (3) and the court has ordered an adjournment of the hearing, the court may make an interim order

(a) for the purposes described in subsection (1) or (3), as the case may be, and

(b) for the period from the adjournment of the hearing until the conclusion of the hearing.

(8) In this section, "court" means the Supreme Court or the Provincial Court.

Power to make regulations

103 (1) The Lieutenant Governor in Council may make regulations as authorized by section 41 of the Interpretation Act.

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:

(a) prescribing the functions of family conference coordinators;

(b) respecting family conferences and mediation;

(c) governing agreements under sections 12.2 and 12.3;

(d) prescribing terms and conditions to be included in agreements made under this Act;

(e) respecting the content and preparation of plans of care and plans for independence;

(f) prescribing aboriginal organizations for the purposes of presentation hearings;

(g) designating, by name or position, those representatives of the Nisga'a Lisims Government, the government of a treaty first nation, Indian bands and aboriginal communities who are entitled to notice under Part 3;

(h) respecting the standards for foster homes and residential services;

(i) to (l) [Repealed 1997-11-32.]

(m) to (o) [Repealed 2004-60-94.]

(p) respecting the prerequisites for the designation of directors and the standards to be met by directors;

(q) respecting the delegation of the powers, duties and functions of directors, including regulations authorizing the minister to restrict a director's power to delegate;

(r) governing reviews under section 93.1;

(r.1) respecting reviews conducted, and reports prepared and finalized, under section 93.2, including, without limiting this,

(i) specifying the criteria a director must apply in exercising his or her discretion to conduct a review, and

(ii) specifying the criteria, rules or requirements that must be applied or followed by a director for the purposes of releasing a finalized report or part of a finalized report under section 79 (g.2);

(s) defining any word or expression used but not defined in this Act;

(t) respecting any matters that are not provided for in sections 105 to 108 and that are necessary for the orderly transition from the application of the former Act in respect of proceedings begun and orders made under that Act to the application of this Act in respect of those proceedings and orders;

(u) [Repealed RS1996 (Supp)-46-3.]

(v) respecting a transfer made under section 95.1;

(w) respecting a transfer of records under section 96.1.

(3) [Repealed RS1996 (Supp)-46-3.]

Part 9 — Transitional Provisions

Proceedings begun under the former Act

106 (1) The definition of "in need of protection" in section 1 of the former Act continues to apply in relation to a child apprehended under that Act, even if provisions of this Act apply in respect of the child.

(2) If a child has been apprehended under section 9 (1) of the former Act but no report has been presented under section 11 (1) of the former Act before the repeal of that Act, section 33 of this Act applies as if the child had been removed under section 30 of this Act.

(3) If a report has been presented to the court under section 11 of the former Act but no order has been made under that section before the repeal of that Act,

(a) section 11 of the former Act continues to apply in respect of the child until an order is made under that section, and

(b) the provisions of this Act apply to any subsequent proceeding relating to the child.

(4) If a hearing under section 12 of the former Act has been commenced to determine whether a child is in need of protection but no order has been made under section 13 (1) of the former Act before the repeal of that Act,

(a) sections 12 and 13 (1) to (3) of the former Act continue to apply in respect of the child until an order is made under section 13 of the former Act, and

(b) the provisions of this Act apply to any subsequent proceeding relating to the child.

(5) If an application has been made for an order under section 14 of the former Act but no order has been made before the repeal of that Act,

(a) section 14 of the former Act continues to apply in respect of the child until the application is disposed of, and

(b) the provisions of this Act apply to any subsequent proceeding relating to the child.

(6) Any proceeding begun under the former Act by the Superintendent of Family and Child Service may be continued under this Act in the name of a director designated by the minister for the purpose of this section.

(7) Section 64 of this Act applies for the purposes of a proceeding under a provision of the former Act that is continued under this section.

Orders made under the former Act

107 (1) This section applies to

(a) an order that was in effect on January 26, 1996 and that was made under the former Act before the repeal of that Act, and

(b) an order that, by the operation of section 106 of this Act, is made under the former Act after the repeal of that Act.

(2) An order made under a provision of the former Act referred to in column 1 of the following Table is deemed to have been made under the provision of this Act referred to in the opposite column:

Former ActThis Act
11 (2) (a)35 (2) (c)
11 (2) (b)35 (2) (c)
11 (2) (c)35 (2) (a)
13 (1) (a)41 (1) (a)
13 (1) (b)41 (1) (a)
13 (1) (c) (custody of a child)41 (1) (c)
13 (1) (d)41 (1) (d)
13 (1) (c) and (3) (access to a child)55
13 (4)97
13 (5)58
1449

(3) An order made under section 11 (2) (d) of the former Act is deemed to have been made under section 41 (1) (d) of this Act unless

(a) by January 29, 1996, 6 months had elapsed from the date the order was made, or

(b) the application for the order was not opposed,

and in either of those cases the order is deemed to have been made under section 49 of this Act.

(4) A reference in an order made under the former Act to the Superintendent of Family and Child Service is deemed to be a reference to a director designated by the minister for the purposes of this section.

(5) The time limits in section 43 of this Act do not apply in respect of an order made under the former Act.

(6) If an application is made under section 54 of this Act for permission to apply for cancellation of an order that relates to an aboriginal child and that is deemed under this section to be a continuing custody order, notice of the application must be served on the persons who would have been entitled to notice under section 49 (2) (c), (c.1), (c.2) or (d) if the child had been removed under this Act.

(7) If a person referred to in subsection (6) appears at the hearing of an application under section 54, the person is entitled to be a party.