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:
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:
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.
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.
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.
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.
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.
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.
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:
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.
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.
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: firstname.lastname@example.org to learn more about how we can assist you with your legal matter.
By: Renatta Austin