Child protection is one of the most important areas of law in the country. In some cases, the stakes could not be higher for parents - the potential of having their child(ren) taken away. My child protection practice is modeled around wise words from a mentor: while regular family law is focused on separation, child protection is focused on reunification.

Children’s Aid Societies have far-reaching powers. While the focus should be on reunification, it may feel like the Children’s Aid Society is working against you and your family. Sometimes this requires diligent and focused energy on litigation; other times, parents just need sound legal advice to get things back on track.

I assist parents with all issues involving Children’s Aid Societies. A large portion of my practice also involves representing extended family members who wish to have their voices heard in the proceedings, typically grandparents and aunts and uncles of the children in question.

Child protection is a discipline in itself

FAQs

  • Speak to a child protection lawyer before the visit, if possible. Generally, receiving notice of the Society's intention to visit your home signals less severity than other cases. (In the most extreme cases, the Society attends a parent's home without notice, with the intention of apprehending the child.) That said, it's still very important to understand how to approach these meetings. Done properly, this could be the last of the Society's involvement; done improperly, this could lead to more problems.

  • The Society must issue a court application and bring a "temporary care and custody motion" within 5 days of apprehending your child. You will likely be served with their court materials with very short notice and will not have time to properly respond. Promptly hiring a lawyer before this first appearance shows immense initiative and that your child's wellbeing is your first priority. If you do not have a lawyer, speak with duty counsel at the courthouse on the day of the appearance.

    In some situations, it's possible to prepare for this first court appearance and properly defend yourself. Most of the time, the court will make a "without prejudice" order either returning the child to your care with supervision terms, or placing your child in the care of somebody the Society deems safe (ideally a family member).

    These orders and court proceedings are very serious. You will need a competent child protection lawyer at this point if you have not already retained one.

  • Parents should absolutely each have their own lawyers. While the two of you may be on the same page now, this may change at some point in the future. Be wary of a child protection lawyer who is prepared to represent both parents together.

  • The Society must keep detailed records of all their interactions with you and their team relating to your file. These records make up the "disclosure" of your case. There is a lot of important information in the disclosure which can help you prepare your litigation strategy moving forward. Your lawyer can request copies; if you are self-represented, simply ask your caseworker for disclosure. It's important to request disclosure regularly (and at minimum before every court appearance) to make sure you have the most updated information and evidence relating to your file.

  • Grandparents and extended family members do not have special rights in child protection proceedings, but there are some clauses in the Child, Youth, and Family Services Act (“CYFSA”) that may apply to them.

    Section 79(3) states:

    • (3) Any person, including a foster parent, who has cared for the child continuously during the six months immediately before the hearing,

    • (a)  is entitled to the same notice of the proceeding as a party;

    • (b)  may be present at the hearing;

    • (c)  may be represented by a lawyer; and

    • (d)  may make submissions to the court,

    • but shall take no further part in the hearing without leave of the court.

    If the grandparents and/or extended family members were not caring for the child during the 6 months prior to the hearing, section 94(5) of the CYFSA requires the Court to consider whether it would be best to place the child with a relative or member of the child’s extended family or community rather than in foster care. Often, family members work together and present a plan for a relative (typically grandparents or aunts/uncles) to care for the child while the parents are unable to care for the child themselves.

    In cases where family members are not aligned, the extended family members could try to be added as a party to the proceeding to advance their case, under section 7 of the Family Law Rules.

  • A very important step in the child protection case. Up until this event, you will have spoken to a judge more informally and "off the record" to try to resolve things, or to better understand why the Society wants to stay involved.

    The care and custody motion is a formal court appearance where you ask the judge to make a temporary order, usually about whose care your child should be in, or what kind of "access" you should have to them.

    It's possible to have more than one care and custody motion throughout the course of a case. It's crucial to time these motions correctly, when you have gathered adequate evidence in support of your position, and understand both the strengths and weaknesses of the Society's position.