What is the onus and burden of proof in a child protection proceeding?

With that understanding of the disposition aspect of a protection proceeding, any discussion of onus or burden of proof is misplaced. This aspect of the proceeding should not begin with a general rule that a party will be unsuccessful unless he or she satisfies a specific burden of proof. The parties, whether the Director, the parents, or an interested third person, all bear the evidentiary burden of demonstrating the most appropriate care plan for a child. Once the Director has established on the balance of probabilities that a child is in need of protection and the court has made that determination, whether on an application under s. 41 or s. 49, the court must assess the evidence before it to determine the appropriate care arrangement within the strictures imposed by the Act. Until a continuing custody order is made, the duty to determine what care arrangement is most appropriate for a child lies with the court, not with the Director or the parents, unless they agree. No general rule should deflect the court’s attention from the necessary inquiry into the child’s needs and the parents’ ability to meet them, with such support as the community is able to provide. As McLachlin J. (as she then was) wrote of an inquiry into the best interests of a child directed by the Divorce Act, so here, the inquiry into the appropriate disposition after a finding a child is in need of protection, "should not be undertaken with a mindset that defaults in favour of a preordained outcome absent persuasion to the contrary”: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 at para. 44.