Most of the work a Society does with a family is accomplished in the aforementioned voluntary manner, however just like in other areas of family law, the Society can commence a court proceeding, which it is permitted to do under Section 40(1) of the Child and Family Services Act. The paragraphs below detail the legal aspects of child protection law and the initial court process.According to Section 1(1) of the CFSA, the paramount purpose of the CFSA is to promote the best interests, protection and well being of children. For many parents and other caregivers, having to deal with a Children’s Aid Society in Ontario can be very stressful, as satisfying the aforementioned paramount purpose of the CFSA can result in questioning their ability to meet the basic needs of the children in their care. In most cases, the Society will attempt to work with the family on a voluntary basis for the purpose of assisting the caregivers and/or the children with services for any children who may be in need of protection. The Society will normally assign a social worker to the family, who will attempt to problem solve with the family while the children remain with their caregivers. In essence, the Society exists to help families and is more of a shield than a sword.
Child in Need of Protection and the Best Interests of the Child
A child protection court proceeding has some similarity with a criminal court proceeding in that it has two parts. In Canada, the criminal court must first determine whether a person is innocent or guilty of a criminal act, with innocent persons being released from any further scrutiny, while guilty parties must deal with a second process called sentencing. When a Society commences a court proceeding, the first part of the process deals with a determination of whether a child is need of protection, and if so then the court will decide the appropriate disposition in the second part.
The Society has the burden of proving whether a child is in need of protection under Section 37(2) of the Child and Family Services Act, failing which, the court will not impose a disposition. If a child is found to be in need of protection and the court is satisfied that a court order is necessary to protect the child in the future, the court can then decide the appropriate disposition for the child taking into consideration the best interests of the child, as per the enumerated grounds in Section 37(3) of the CFSA. Section 37(3)(6) of the CFSA specifically details consideration for the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community, and in essence encourages kin and kith of the child or family to be considered in any plan for the child.
A court can make several different dispositions including:
- placing the child in the care of a parent or another person under the supervision of the Society for a period of time of at least 3 months and not more than 12 months;
- placing the child in the care of the Society for a period not exceeding 12 months;
- placing the child in the care of the Society for a specified period and then returning the child to a parent or another person for a specified period; or
- making the child a ward of the Crown with or without access to the parents.
As well, under Section 57.1 of the CFSA, the court can grant custody of a child to one or more persons, with the consent of those persons.
The aforementioned finding of whether a child is in need of protection and the decision regarding the appropriate disposition can be ordered by the court at the conclusion of a trial, or can be consented to by the parties at any stage of the court proceeding.
Any terms of custody and access in an outstanding custody order concerning a child who is the subject of a current child protection application, will have no force or effect while the application is ongoing. All issues of access and placement of the child during the child protection application will be decided with the context of the child protection application, which will effectively “trump” any outstanding custody order.
Parents and Parties
All “parents” as defined by the CFSA will be given recognition as parties to a court proceeding. The term “parent” is given a broad definition in Section 37(1) of the CFSA, and is meant to be inclusive due to the very serious remedies available to the court under the CFSA, such as Crown wardship. Often, more individuals than just the natural mother or father of a child will be included as a “parent” in child protection court proceedings.
If an individual who was not initially named as a party would like to plan for a child involved in the proceeding, then that individual can seek the remedy of being added as a party. As well, pursuant to Section 39(1)(4) of the CFSA, where a child is an Indian or native person, a representative chose by the child’s band or native community will also be a party to the proceeding.
Plan of Care
Pursuant to Section 56 of the CFSA, the court shall, before making any disposition, obtain and consider the Society’s plan for the child. The parties are also entitled to obtain a copy of the Society’s plan, which will include information regarding the services the Society expects to provide to the family, what the Society expects the family to do, explanations as to why a child cannot remain in the care of a particular caregiver, and a description of arrangements made or being made to recognize the importance of the child’s culture and to preserve the child’s heritage, traditions and cultural identity.
The Plan of Care is a very key document as it provides the parents and other caregivers with information on what they may or may not need to do to remedy the condition or situation that resulted in their child being found to be in need of protection. It also assists the court in deciding the proper disposition for the child and whether the proposed plan for the child is appropriate to meet the needs of the child.
Apprehension of a Child
Unfortunately, circumstances may dictate apprehension of a child by the Society at the commencement of a court proceeding or at any time during an existing court proceeding. At that time, placement of the child in the temporary care of the Society will occur when the child cannot be adequately protected while remaining in the care of her or his parent or caregiver.
Apprehension is a remedy not often sought by the Society, and normally is done by obtaining a warrant for same after convincing a Justice of the Peace that the child is in need of protection, and a less restrictive course of action is not available or will not protect the child adequately. In certain circumstances, a child can be apprehended without a warrant when a child protection worker believes on reasonable and probable grounds that the child is in need of protection, and there would be a substantial risk to the child’s health or safety during the time necessary to bring the matter before the court or to obtain a warrant.
The Society must as soon as practicable, but in any event, within five days after a child is apprehended:
- bring the matter to court to obtain an interim order maintaining the child in the care of the Society;
- return the child to the person who last had charge of the child or the person who is entitled to custody under an order; or
- have the child remain in the care of the Society under a temporary care agreement.
If the Society is successful in obtaining an order placing the child in the temporary care of the Society, a parent has the right to a hearing to determine whether the child can be returned to the parent, or be placed with another person, with that person’s consent, and subject to the supervision of the Society.
If a child remains in the care of the Society, and if that child is under 6 years of age, the CFSA only permits that child to remain in Society care for 12 months, at which time the Society must decide whether the child should be permanently removed from the child’s caregivers. Children 6 years of age and older can remain in the care of the Society for 24 months, at which time the Society must decide whether the child should be permanently removed from the child’s caregivers.
After a decision is made on the interim placement of the child, either with the Society, with the parent, or with another person under the supervision of the Society, the court matter can progress as detailed above with a determination of whether a child is in need of protection and the appropriate disposition.