Child Protection Legislation in Ontario

The relevant law for child protection and child safety is the Child and Family Services Act (CFSA) . Matters under the CFSA are heard in the Ontario Court of Justice or the Family Court of the Superior Court of Justice.

Voluntary Agreements

A family may be given the option to work with on a voluntary basis. When this happens, an agreement will be drawn up between the caregivers (parents) and the Society with terms relating to what each party will do (i.e. the parents will attend a parenting course, the child will attend for an educational assessment, the Society will provide a family support worker to work with the parents in the home). The Society will monitor the family during this time but the matter will not be in front of the court and no court order will be made relating to the family. The agreement will run for an agreed upon length of time and then may be terminated or renewed depending on the circumstances.

How a CAS Matter Begins

A child protection proceeding can begin in two ways:

• A child protection agency (i.e. The Ontario Children’s Aid Society) may apprehend or remove a child from the family home if they believe there are serious concerns that cannot be addressed while the child remains in the home. This may be the case where the caregiver (parent) is believed to have a drug or alcohol problem or where there are concerns about physical abuse of the child by someone in the home.
• The agency may also apprehend if there are allegations of spousal abuse and the parties cannot reach an agreement for the accused spouse to leave the house and live elsewhere. In that case, the child will be removed from the home and placed in foster care although the agency may also look for an alternate placement with other family members or family friends if they are deemed to be appropriate by the agency. An apprehension may be done without a warrant if the agency feels there is an emergency situation. If a child is apprehended, the agency must have the matter in front of a judge within five days of the apprehension.

The agency may also become involved in situations where the family is having difficulties but these difficulties can be addressed without removing the children from the home. For instance, if there is concern that a caregiver (parent) is abusing drugs or alcohol, the child may be allowed to remain in the home if there is someone else available to look after the child. An example of this would be where another relative moved into the home and supervised the parent’s contact with the child. It is not necessarily something the family would welcome but it is preferable to having the child removed from the home and placed in foster care. The agency may also feel that the problem can be dealt with my monitoring the family and recommending services such as counselling.

Findings and Dispositions

The grounds under which a child can be found “in need of protection’ are found in Section 37(2) of the Child and Family Services Act. While these grounds include physical, emotional and/or sexual abuse, the Act also allows the court to make a finding that the child is “a child in need of protection” if the child is at risk of suffering abuse. The Act also allows the court to make a finding if the child is not being taken for proper medical care and if the child is surrendered to the agency by the family.

A finding is not the same as a disposition from the court. A finding deals with the issue of whether or not the child is in need of protection under the CFSA. The disposition is related to what the court orders in terms of addressing that need for protection. For instance, the child may be found in need of protection because a parent is using drugs and not able to care for the child. That is the finding. The court may then make an order that the child will live with the grandparents for a period of six months and the parent’s access to the child will be supervised during that time. That is the disposition.

Temporary versus Permanent Wardship

If a child is brought into care and it does not appear that a placement with other family members is possible, the Society will seek an order to make the child a “Society ward” or temporary ward of the Society. If a child is under the age of six, this order can last up to twelve months. If a child is over the age of six, this order can last up to twenty-four months (the court has the discretion to extend these time limits if it is appropriate to do so). These dates are important because the law requires the Society to make permanent plans for the child at the end of this period – i.e. return them to the parents or make them a permanent or “Crown ward” of the Society. When a child becomes a permanent ward, it is possible to have the child considered for adoption and a parent could lose all rights to the child.

Section 38 – The Children’s Lawyer

Under Section 38, the Act allows the court to appoint a legal representative for the child from the Office of the Children’s Lawyer (a branch of the Ministry of the Attorney General). This is paid for through Legal Aid Ontario in order to give the child an independent voice in the court matter. This can be helpful to the family and the court as it provides a means for the child to give their opinion about his or her future and it is an opinion that may be in complete opposition to what the Society is proposing.

Working with the CAS

A family that finds itself involved with a child protection agency will often find the experience emotionally draining. It is a state intervention into your personal life and it is difficult to keep a clear head. Conflicts between the family and the Society worker are not unknown. But you must remember the importance of being cooperative with the Society to the extent that you are able. A court must see that you are willing to address the issues that caused the Society to become involved in the first place or it will not be willing to end the Society’s involvement with the family. A lawyer experienced in child protection law is useful in helping you understand how to best present your case while still protecting your rights in this type of case.

What you should know about child protection court cases

Please visit our Child Protection Frequently Asked Questions section for further information or contact us.