Child Protection 101: What to Expect in a Children’s Aid Case

Under the Child Youth and Family Services Act, children’s aid societies have the power to intervene in a family’s life whenever it believes that a child is “at a risk of harm”. CAS social workers have broad powers to investigate, do searches and to immediately remove children from their home.

The basic elements of a child protection or children’s aid case are:

1) Investigation

Child protection cases typically start with someone making a report to CAS about suspected child abuse or neglect. Schools, daycares, hospitals, police officers, neighbours, friends and family members are often the source of the report.

Upon receiving a call about suspected child abuse or neglect, an intake social worker will assess the risk to the child and investigate the complaint. Similar to police officers, child protection social workers have the power to interview people, conduct searches, obtain warrants and bring a child into their custody.

In many ways, a child protection social worker has greater powers than the police while they are investigating a suspected child abuse or neglect. Because we as a society believe that we should err on the side of protecting children, rights that apply to interactions with the police do not apply in the same way to child protection social workers. The law expects that anyone who has information about a child who may be abused or neglected will cooperate with the child protection social worker to help ensure the safety of the child.

If the social worker verifies the suspected child abuse or neglect, they have a number of options available to them, including offering services and supports to the family, entering into a temporary care agreement with the family to voluntarily place the child in care, or taking more intrusive steps such as removing the child from the home.

 

2) Court Application

If CAS removes a child from someone’s care, the law says they must bring the case to court within 5 days. Where CAS does not remove from a child but has concerns about abuse or neglect, they may still choose to take the parent or caregiver to court to address the child protection concerns.

To start the court case, CAS must serve the parent with a Form 8B: Application, outlining the allegations of suspected child abuse or neglect and the order it is asking the court to make. At the outset, the Society should give the parent a caregiver a clear sense of what has to be done to address the child protection concerns so CAS can terminate the application.

The child’s parent(s) or caregiver(s) is required to file a Form 33.1: Answer and Plan of Care within 30 days, responding to the allegations and telling the court how they will address the child protection concerns and what their plan is for the child.

 

3) Temporary Care and Custody Hearing

Child protection matters can take months or years to resolve. Until the case is closed or a final order is made, a judge has to make temporary orders about where the child will live and who will be responsible for their care.

Together with the application, CAS typically serves a Form 14: Notice of Motion and Form 14A: Affidavit asking the court to place the child in the temporary care and custody of the parent or caregiver, CAS or another person. If the parent disagrees with the temporary order CAS is seeking on the motion, they may file a responding affidavit asking the court for a different temporary order.

Because of how quickly child protection matters have to be brought to court and the need to obtain file disclosure from CAS, temporary care and custody hearings are rarely heard on the first court date. The parties normally agree to adjourn the matter to a later date to give the parent or caregiver sufficient time to collect the evidence they need to respond to the temporary care and custody motion.

 

4) Finding in Need of Protection

If CAS decides to take a family to court, it must prove that it had a legitimate reason for getting involved with the family and taking the steps that it did.

While child protection is focused on protecting children, rather than placing blame, the finding in need of protection is analogous to the determination of guilt or lack of guilt in a criminal proceeding. If there is no finding in need of protection, the case must end. If there is a finding that the child was in need of protection, the court must then determine the appropriate outcome or disposition, which is analogous to sentencing in criminal law.

Section 74(2) of the CYFSA sets out the reasons why a child may be “in need of protection:

Physical Harm

The child has actually suffered physical harm or is at a risk of suffering physical harm due to the parent or caregiver failing to care for, provide for protecting or supervising the child, or showing a pattern of neglect in doing so.

Sexual Harm

The child has been sexually abused or exploited and the parent or caregiver committed the abuse or exploitation or failed to protect the child from it, or there is a risk of the child suffering this type of harm.

Emotional Harm

The child has or is at a risk of suffering emotional harm due to serious anxiety, depression, withdrawal, self-destructive or aggressive behaviour or delayed development. A child may be found to be in need of protection from emotional harm where the parent’s action, inactions or neglect has caused the emotional harm to the child, or where the parent has not caused the harm but is unwilling or unable to get treatment for the child.

Abandonment

The parent or caregiver has abandoned the child or is otherwise unable to care for the child and has not made adequate arrangements for him/her.

Special Needs  

The child has an emotional, mental or developmental condition that, if not remedied, will seriously impair the child’s development and their parent or caregiver is unable or unwilling to get treatment for the child.

Delinquency

The child is under the age of 12 and has killed, seriously injured another person or caused damage to another person’s property and inadequate parental supervision was a factor or treatment is required.

 

5) Disposition

Where a child is found to be in need of protection, a court must make a final order about the care and custody of the child. The court is required to assess all of the available options and to make the order that is in the child’s best interests.

Section 101 of the CYFSA sets out the types of final orders or disposition a court may make:

Supervision Order

A court may place in the child in the care and custody of the parent, caregiver or another person for up to 12 months, subject to supervision by CAS. The person assuming care and custody of the child for the specified period of time is normally required to follow conditions and to meet with CAS regularly. A supervision order is analogous to probation in criminal law.

The law does not impose limits on the number of supervision orders that can be made. It is not uncommon for final supervision orders to be renewed several times.

Interim Society Care (formerly Society Wardship)

A court may make a final order placing a child in the care of CAS for up to 12 months.

However, the law imposes limits on this disposition. A child who is under the age of 6 cannot be in the care of CAS for more than 12 months in total. A child who is over the age of 6 cannot be in the care of CAS for more than 24 months in total. This time limit applies to the entire period of time the child has been in the care of CAS, including periods where the child was voluntarily placed in care. Extensions may be granted in rare circumstances.

The purpose of placing a limit on interim society care orders is to ensure that permanency planning is done and that children do not languish in foster care.

Legal Custody

A child protection court may make an order placing the child in the legal custody of a parent or another person. The custody order is deemed to be the same custody order that a parent or another person could obtain in regular family court and the custodian is granted the same rights.

A legal custody order does NOT terminate parental rights. A parent or another person may apply to the regular family court at a later stage to vary the order.

Extended Society Care (formerly Crown Wardship)

A court may make an order terminating a parent’s rights and making a child a permanent ward of the state. A child who is in extended society care may be placed for adoption.

The termination of parental rights is the most severe legal consequence in the civil justice system. It is meant only for those cases where there are no less intrusive dispositions available and such an order would be in the child’s best interests.

Customary Care

In cases involving First Nation, Inuk and Metis, where a child cannot be returned to their parent or caregiver, CAS has a duty to explore customary care. Customary care is a plan of care for the child by a person who is not the child’s parent that is done according to the custom of the child’s band or First Nations, Inuit or Métis community.

 

6) Status Review

Final orders made in child protection proceedings may be reviewed after a period of time. On an application for a status review, the court may vary or terminate the original order or make further dispositional orders in the child’s best interests.

A status review application asks the court to take a look at the child’s current situation. It is not an opportunity to re-litigate the finding or original disposition.

Status review applications are commonly made prior to the expiration of supervision orders or interim society wardship orders. Status reviews are one of the reasons child protection cases can remain in court for years.

 

Child protection is a complex and specialized area of law. The facts are often dynamic and the legal issues are challenging. How a particular case will unfold depends on a number of factors, including the allegations being made by CAS, the family’s circumstances and the court in which the matter is heard. It is important to hire an experienced child protection lawyer who knows the law and the court process to protect your family and defend your rights. 

 

The Eglinton West Law Office provides legal services in child protection, family and criminal law to clients across the GTA. Please contact us by phone: 416-554-1411 or email: info@eglintonwestlaw.ca to learn more about how we can assist you with your legal matter.  

 

By: Renatta Austin

 

Money Matters: Legal Aid

Legal Aid Ontario is a government-funded organization that pays for legal services for low-income people. Those in need of legal services must apply directly to Legal Aid Ontario by calling 1-800-668-8258.

Upon approval, Legal Aid provides the client with a certificate. The certificate is a voucher that allows the client to hire a lawyer to assist them with 1) specific types of legal matters and 2) for specific amounts of time. For example, most family law certificates permit a client to purchase up to 12 hours of legal services for their family law matter.  Legal Aid may authorize additional hours if it believes there is a good reason for doing so.

Legal Aid sets the lawyer’s hourly rate and it limits the amount of time the lawyer can spend doing work on the client’s matter. As a result, Legal Aid certificates are most appropriate for straightforward matters. A certificate may not be appropriate for matters that involve complicated facts or legal issues, or matters that involve large amounts of documents.

Things Legal Aid will pay for include:

  • Preparing documents
  • Filing documents
  • Attending court
  • A limited number of client meetings
  • Meetings with CAS and third parties that are necessary
  • A limited amount of phone calls and correspondence with clients and third parties
  • Reasonable photocopying and postage expenses
  • Police reports, CAS records, and other documents that are required for the case. There is a spending limit for some types of records.

Things Legal Aid will NOT pay for include:

  • Excessive phone calls, meetings and correspondence with client or third parties
  • Long-distance calls
  • Travel to court, to meet with clients or for any other purpose
  • Experts
  • Work that is not relevant to the court case or that is not necessary to resolve the legal issues in dispute
  • Phone calls or emails to remind/confirm appointments or court dates

Things that require special permission from Legal Aid:

  • Travel expenses
  • Setting down a case for trial
  • Expert witnesses
  • Pre-trial motions or hearings
  • Any other extraordinary expense

We accept a limited number of Legal Aid certificates for child protection, family and criminal law matters. Prior to meeting with clients, we ask for their legal aid certificate information to verify that they have a valid certificate and the services authorized on the certificate. We do NOT acknowledge Legal Aid certificates until we meet with the client and agree to represent them.

The Eglinton West Law Office provides legal services in child protection, family and criminal law to clients across the GTA. Please contact us by phone: 416-554-1411 or email: info@eglintonwestlaw.ca to learn more about how we can assist you with your legal matter.  

By: Renatta Austin

Money Matters: Understanding Legal Fees

Clarity and transparency about legal fees is one of the most important ingredients for a successful lawyer-client relationship. Before entering into a retainer agreement with a lawyer, it is important to discuss with the lawyer how they bill for their services, what is included in their fee and what is excluded, and how you will pay for it.

How Lawyers Determine Fees

Most lawyers who offer legal services to the public are private practitioners. What this means is, whether the lawyer is practicing alone, in a small firm, or in a large firm, they are likely operating a for-profit business. Similar to other businesses, the lawyer will have start-up expenses (money spent to start the business) and operating expenses (expenses that must be paid monthly/annually to keep the business going). There are a number of other expenses that lawyers and other regulated professionals have to pay in order to maintain their license. These include liability insurance, licensing fees and continuing education expenses. Many new lawyers are graduating with a significant amount of student loans, due to drastic increases in law school tuition. This is another factor that is driving up the cost of legal services.

Each lawyer or law firm is responsible for setting their own fees. However, legal fees are usually based on the lawyer’s overhead expenses (both start-up expenses and operating expenses), the lawyer’s expertise and years of experience, and the market rate for legal services.

Canadian Lawyer Magazine publishes an annual survey of legal fees across Canada. It is a helpful tool for assessing a lawyer’s fees. The average hourly fee for a lawyer with my level of experience and areas of practice is currently $300 to $350. Click here for the complete 2018 legal fees survey.

The Billable Hour

Most lawyers and other legal service providers charge an hourly fee for legal services. Each hour is broken down into tenths and is billed in six-minute increments as follows:

Billable Time Actual Time
0.1 0 – 6 minutes
0.2 7 – 12 minutes
0.3 13 – 18 minutes
0.4 19 – 24 minutes
0.5 25 – 30 minutes
0.6 31 – 36 minutes
0.7 37 – 42 minutes
0.8 43-48 minutes
0.9 49-54 minutes
1.0 55-60 minutes

The lawyer or law firm bills for all time spent on the client’s matter, including drafting documents, doing research, corresponding with the client and third parties, attending meetings and court appearances, etc. The lawyer cannot bill for some other types of work that may be time-consuming and necessary to do the client’s work, but is considered “overhead”. This non-billable work, which includes administrative/clerical work, marketing and professional development, is built into the lawyer’s hourly fee.

While the billable hour is the most common way of billing for legal services, it has developed a bad reputation over the years among clients and lawyers alike. The client does not have certainty about how much their legal matter will cost and the lawyer does not have any certainty about how much income they will generate from a given file. For these reasons, some lawyers have moved towards flat fee and alternative billing arrangements for routine and predictable matters, such as drafting documents.

We have found the billable hour to be the fairest way to bill for our services. Litigation is complex, unpredictable and often driven by the conduct of the parties. By billing for our time, those clients who use more of our time pay more, while those who use less pay less. Additionally, we can only bill the client for the time spent on the client’s work and cannot bill for time spent on other clients or on personal matters.

**** Some civil litigation lawyers enter into contingency fee arrangements with clients. This means that the lawyer is only paid if the client recovers money. Contingency fee arrangements are NOT permitted for family or criminal law matters.

Disbursements

Legal fees are for the lawyer’s time. They do not include expenses that lawyer or law firm incur to do the client’s work. The expenses that the client must reimburse the lawyer for are called disbursements and are typically billed as a separate item on the client’s invoice.

Common disbursements include court filing fees, process server/courier fees, long distance calls, postage expenses, fees charged by third parties for letters or reports, photocopying/printing, and binding materials. If the lawyer is required to travel to do a client’s work, they may also bill the client for travel expenses, including mileage and parking.

It is important to discuss anticipated disbursements with the lawyer before signing the retainer agreement and throughout the lawyer-client relationship.

HST

Similar to other businesses, lawyers are required to both collect HST for their services and to pay HST for expenses.

Tips for minimizing your legal bill

Organization and Efficiency – each time a lawyer or law clerk touches your file – whether it is to read an email, answer a phone call or to organize and/or review documents – the billable clock starts anew. Multiple emails and phone calls, or sending information in a piecemeal fashion drives up your legal bill. The more efficient you are in providing information and communicating with us, the less time we will bill. Likewise, we strive to be organized and efficient by streamlining our processes, continually investing in technology and assigning work to the appropriate staff based on their expertise and skills (i.e. law clerks do law clerk work and lawyers do lawyer work).

Reasonableness – your lawyer has an obligation to be honest with you about your matter and to provide you with the best legal advice based on their knowledge of the law and your circumstances. What you do with that legal advice is up to you. In my experience, clients who follow their lawyer’s legal advice typically end up spending an appropriate amount on their legal fees. Clients who choose not to follow their lawyer’s advice, take unreasonable positions, or take positions that are not supported by the law and their circumstances typically end up paying higher legal fees due to the additional time spent trying to achieve their desired outcome.

 

The Eglinton West Law Office provides legal services in child protection, family and criminal law to clients across the GTA. Please contact us by phone: 416-554-1411 or email: info@eglintonwestlaw.ca to learn more about how we can assist you with your legal matter.  

By: Renatta Austin, September 9, 2018