The law governing child protection matters in Ontario is the Child and Family Services Act (CFSA). According to section 1(1) of the CFSA, the paramount purpose of the act is to promote the best interests, protection and well-being of children. Two additional purposes of the act are as follows: to provide support to the autonomy and integrity of the family unit, and wherever possible, provided on the basis of mutual consent, to provide the least disruptive course of action available and appropriate in each particular case. The act also aims to provide children’s services that take into account physical, cultural, emotional, spiritual, mental and developmental needs along with a child’s need for continuity of care.
In most instances, the society will take the least disruptive course and work with families in order to resolve any and all issues and best provide support for the family unit. However, if the society’s concerns are not resolved or if voluntary efforts by parents are insufficient, the society may commence protection proceedings and apprehend the children. In this scenario, children would be placed into the protective custody of the society and may place the children into foster care.
A child protection application is a civil proceeding, therefore the society must prove on the balance of probabilities that a child is in need of protection. According to section 37(2) of the CFSA, a child can be found in need of protection based on a number of different grounds including where the child has suffered or is likely to suffer physical harm by the person having charge of the child or where a child has been sexually molested or exploited.
The Court may consider the past conduct of a person toward any child if that person is caring for or has access to a child who is the subject of the proceeding. The Court can also consider any oral or written statement or report that the Court considers relevant to the proceeding and is admissible into evidence.
Because courts wish to ensure the progression and resolution of child protection matters, courts generally do not adjourn a hearing for more than 30 days. Where a hearing is adjourned, the Court must make a temporary order for the care and custody of the child or children and has several options, including returning the child or children to the care and custody of the person who had charge of the child immediately before the Court’s intervention. The temporary care and custody of a child can also be subject to the society’s supervision and on such reasonable terms and conditions as the Court considers appropriate. The Court further has the option to leave the child in the care and custody of the society or place the child with another person, with the consent of the custodians of the child prior to his or her apprehension, subject to the society’s supervision and on such reasonable terms and conditions as the Court considers appropriate. The emphasis of the legislation is to keep a child with their family, if possible.
Prior to the Court making an order on whether a child is in need of protection, the Court must obtain and consider a plan for the child’s care prepared in writing by the society. The society’s plan must include the following: a description of the services to be provided to remedy the situation of which the child was found to be in need of protection; a statement of the criteria by which the society will determine when its supervision is no longer required; and also an estimate of the time required to achieve the purpose of the society’s intervention. The parties are also entitled to obtain a copy of the society’s plan.
If a court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the Court can make one of the following orders in the child’s best interests:
- The child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than twelve months;
- The child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.
- The child be made a ward of the Crown, until the wardship is terminated or expires and be placed in the care of the society
- The child be made a ward of the society for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months
- An order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons
Section 64 of the CFSA deals with status review applications that apply to children who are the subject of an order for society’s supervision or society wardship. A status review application is a request by an interested party that the Court review a child’s status. A party may apply for a status review application if the child is at least 12 years of age, a parent of the child, or a person with whom the child was placed under an order for society supervision.
However, no application shall be made by a party within six months of the latest of the following: the day the original order was made, the day the last application by a party other than the society was disposed of, or the day any appeal from the order or disposition was final disposed of or abandoned. The society, however, having care, custody or supervision of a child, may apply to the Court at any time for a review of the child’s status.
A child protection proceeding is treated as paramount to a custody dispute even if the custody matter is presently before the Ontario Superior Court of Justice. Therefore, if a proceeding is commenced or an order for the care, custody or supervision of a child is made, any proceeding respecting custody of or access to the same child under the Children’s Law Reform Act is stayed except by leave of the Court.
For more information, please contact:
Shawyer Family Law
504-2300 Dufferin Street
Toronto, ON M6A 3B2
416-398-4044 ext 25