Noémie Gagnon-Bergeron – Transfer of Custody of a Child Under Section 54.01 of the CFCSA: What You Need to Know. Published June 18, 2025.
Temporary custody comes first
Not every child lives with their biological parents. Sometimes, biological parents are unable to care for their child at a particular point in their lives, and ask trusted family or community members to step in – either for a certain amount of time or indefinitely.
In other cases, parents face challenges that prevent them from adequately meeting their child’s needs, which can lead to the Ministry of Children and Family Development (MCFD) getting involved. If they do, the MCFD might “remove” the child from their parents’ care and place the child in the temporary care of someone else.
When determining who could care for the child while the parents address the MCFD’s safety concerns, the MCFD often looks to other family members or people already within that child’s community. The goal is to place the child with a trusted person temporarily, allowing the parents to address the safety concerns. When initiated by the MCFD, the result is what we call a temporary custody order.
What does the CFCSA say about a permanent transfer?
The sad reality is that not all biological parents are able to resume care for their child. Either because they prefer leaving the child in the care of the trusted person, or because they were unable to address the MCFD’s safety concerns within the time frame required by the legislation. The legislation we are referring to here is the Child, Family and Community Service Act (CFCSA).
If the parents are unable to resume care for the child, one of the options under the CFCSA is to permanently transfer the child to the person who has been caring for the child since their removal from the parents. This is called a “permanent transfer of custody before continuing custody order” and is governed by section 54.01 of the CFCSA.
The purpose of section 54.01 is to avoid placing the child in foster care. Without section 54.01, there would need to be a continuing custody order made that would place the child permanently in the care of the Director (another way to refer to the MCFD). In such cases, the Director would have total responsibility for the child, which might include placing the child in foster care.
How does it happen?
A permanent transfer under section 54.01 is initiated by the MCFD. They can make a permanent transfer to anyone that is subject to either: 1) an agreement with the child’s kin and others; or 2) a temporary custody order.
Regardless of how the process began, in order for there to be a successful transfer under section 54.01 a judge from the Provincial Court of British Columbia must assess and conclude that the transfer is in the best interests of the child. There are many factors to consider when assessing what is in a child’s best interests, some of which include:
- The child’s physical and emotional needs.
- The child’s need for stability.
- The child’s connection to their family, culture, and community.
- The views of the child, depending on their age and stage of development.
Before the hearing, notice of the time and date must be provided at least 10 days in advance to the following people:
- The child themselves, if they are 12 years of age or older;
- each of the parents;
- A designated representative of the First Nation, Nisga’a Lisims Government, or Treaty First Nation if the child belongs to any of those communities;
- The person to whom the court has been requested to transfer permanent custody; and
- The Public Guardian and Trustee, if appointed as the child’s property guardian.
What happens next?
If an order is granted under s. 54.01 of the CFCSA after the hearing takes place – resulting in a permanent transfer to a non-parent – that person becomes the guardian for that child under the Family Law Act (FLA). This means that this person has parenting responsibilities for the child. In other words, they are legally able to make decisions for that child.
In some circumstances, an order under section 54.01 can impose conditions, such as giving the biological parents visitation rights with the child.
It’s important to note that a permanent transfer of custody is different from appointments of guardianship. Appointments of guardianship is pursued through an application under the FLA and does not require the involvement of the MCFD. However, even if the MCFD is involved, a guardianship application can still be made by the individual seeking guardianship (also commonly referred to as custody).
If you or someone you know is interested in getting more information on a section 54.01 permanent transfer of custody under the CFCSA, or on appointment of guardianship under the FLA, any of our trusted lawyers here at Portside Law would be happy to help!
Disclaimer – By contacting Portside Law Corporation through email, phone or direct message does not establish an attorney-client relationship. An attorney-client relationship is formed once both parties agree in writing to such a relationship. The information found in this document is of general nature and is not intended to be legal advice. Please contact our office to speak further about any particular legal question you may have.