Child Protection Law – Frequently Asked Questions
This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. This content is only intended to provide general legal information with respect to the area of child protection law.
What is child protection law?
Child protection is an area of law that is focused on the identification of children who are in need of protection and who require intervention by the Children’s Aid Society (“CAS”). In Ontario, the Child and Family Services Act is the central piece of legislation which regulates the area of child protection law.
My family is currently involved with the CAS. Do I require a lawyer who specializes in child protection?
It will depend on the situation. You may wish to seek a lawyer who practices in the area of child protection if one of the following scenarios applies to you:
- You are pregnant or your current partner is pregnant, and the CAS has advised you that they intend to apprehend your child at birth due to concerns about your ability or the ability of your partner to care for your child.
- The CAS has apprehended your child to protection concerns regarding yourself, your current partner, your former partner, a family member or a friend residing with you. These concerns can include illicit drug use, untreated medical issues, untreated mental health issues, domestic violence and/or capacity issues.
- Your child has a medical condition and is refusing medical treatment, or the CAS is alleging that you are not seeking appropriate medical treatment for your child.
- Your child has been a victim of a physical or sexual assault or is at significant risk of being physically or sexually assaulted, and CAS is alleging that your child is not adequately protected in your care, or the care of your former partner.
- Your teenager requires psychiatric treatment at a secure treatment centre because they significant risk of harming themselves or others.
- You are the family member of a child that has been recently apprehended by the CAS and you wish to put forward a plan of care to have the child placed with you on a temporary or on a permanent basis.
The situations above are just a few examples of the instances where you may wish to consult the services of a lawyer who practices in the area of child protection law in order to get a sense of your rights.
My child has just been taken from me. What do I do?
Having a child apprehended by the CAS is one of the most difficult and emotional scenarios a parent can face. Although it is entirely understandable that a parent is angry or upset in such a situation, it is important to remain calm and to not lash out towards the CAS caseworkers or police in attendance. Do feel free to contact any family members, friends or community services that can provide you with support and assistance during this difficult time.
When CAS apprehends a child, a court appearance must take place within 5 days so that the Court can make an order as to the interim placement of your child. Ask the CAS caseworker to provide the warrant allowing the apprehension of your child (if applicable) and all other court documents needed for the first court appearance. It is possible that you may not receive these court documents until shortly before the court appearance.
Before the first court appearance, you should be provided the following court documents:
- Notice of Motion by CAS.
- Affidavit of the CAS caseworker in support of the Notice of Motion. In certain cases there may be affidavits from more than one CAS caseworker.
- Warrant of Apprehension and/or the Affidavit of Apprehension.
- Protection Application
- Plan of Care (CAS)
- Blank Answer and Plan of Care (for parties other than CAS).
Once you receive these documents, read through them carefully and take note of the information and allegations that you agree with or do not agree with. It is also important to consult with a lawyer as soon as possible in order to get a sense of your rights and obligations in your case. Because of the short timeline between the apprehension and the first court appearance, your first contact with a lawyer will most likely be with the Duty Counsel at Court either just prior to the first court appearance.
Once the first court appearance is complete, it is extremely important to complete an application to obtain a Legal Aid certificate (if you meet the financial eligibility) and to retain the services of a lawyer who represents clients in child protection cases. Once you have had a chance to retain a lawyer, you will have the opportunity to prepare a response to the allegations against you, and to determine the next steps that you may wish to take in your case.
What should I bring to my first meeting with a lawyer?
If you have a meeting with a lawyer, it is likely that you have already called and provided some basic information about your matter. However, it is also helpful to bring the following with you to your first meeting:
Court documents: It is essential to bring your Court documents with you to your first meeting. These include the Child Protection Application or Status Review Application; the affidavit of one or more CAS workers, and the CAS’ Plan of Care for the child or children subject to the Application. Where your child or children were apprehended, there should also be a Notice of Motion and an Affidavit of Apprehension included among your court documents.
Where possible, it is encouraged to drop off a copy of the court documents that you were served upon you by CAS, so that the lawyer can have a chance to review them prior to the initial meeting.
- Your response to information in the Court documents: One of the central things that will be done at a first meeting will be to collect information to help prepare your response to the CAS’ Protection Application or Status Review Application. It is helpful to have this information handy, or have written notes with such information. This will require you to read the court documents, as understandably difficult that can be.
- Information about your plan of care: Also as part of your initial meeting with a lawyer, information will be gathered to present a plan of care for your child or children. It is helpful to have the names of any family members, friends and community supports that are available to assist you in caring for your child or children.
What kind of orders can CAS seek against me with respect to my child?
Generally speaking, there are 4 kinds of orders that CAS can seek with respect to a child in Court:
- A supervision order placing a child in the care of a parent, subject to terms and conditions for the parents to that child for a period of 3 to 12 months.
- A supervision order placing a child in the care of a family member (kin) subject to terms and conditions for that family member and any parents to the child for a period of 3 to 12 months.
- An Order for Society wardship, which means that a child will remain in the care of the CAS (i.e.: foster care) for a period of time not exceeding 12 months.
- An Order for Crown wardship, which means that a child is placed permanently in the care of the CAS and the parent’s rights in relation to that child are terminated. A Crown wardship order can include provisions for access between one or more parents to that child, or for access between siblings if the Court finds that such contact is meaningful and in a child’s best interests. However, most often an Order for Crown wardship does not include an order for access so as to facilitate a child’s placement for adoption.
What is an Openness Agreement or an Openness Order?
Openness is defined as post-adoption contact between a Crown ward that has been placed for adoption or has already been adopted, and one or more members of his or her biological family (such as biological parents, grandparents, siblings, etc.) and can also include non-biological individuals with whom a child has a close and meaningful relationship prior to adoption (such as a foster family).
Openness Agreements are written agreements or informal arrangements between adoptive parents and one or more biological family members or non-biological individuals, which outlines the frequency and nature of the contact with the adopted child. Such contact can include exchanging pictures, providing email updates with respect to the child, allowing the exchange of cards and gifts, or face-to-face visits. Every case is unique, which provides Openness Agreements with the opportunity to be creative and flexible to ensure continued contact that is beneficial and meaningful to the child.
Openness Orders are similar in terms of the type of contact they contain, but these are obtained by way of a Court application and order of a judge. Openness Orders can only be obtained by certain individuals (known as “access holders”) and any application must be brought within very strict timelines after receiving a notice that a child is being placed for adoption.