Child Protection Law

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, Youth and Family Services Act is the central piece of legislation which regulates the area of child protection law.

The Child, Youth and Family Services Act generally applies to children that are under the age of 16. However, children that are 16 and 17 years of age can still be subject to the Child, Youth and Family Services Act under certain conditions.

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 take your child to a place of safety due to concerns about your ability to care for your child.

• The CAS has removed your child and placed them at a place of safety due to protection concerns regarding yourself, your current partner, your former partner, a family member or a friend residing with you. These concerns can include substance 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 their caregiver.

• Your child or teenager requires psychiatric treatment at a secure treatment centre because they are at a significant risk of harming themselves or others.

• You are the family member of a child that has been recently removed from their home 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.

These situations are just a few examples where you may wish to consult the services of a lawyer in order to understand your rights.

My child has just been removed from my care. What do I do?

Having a child removed from your care 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 removes a child to a place of safety, a court appearance must take place within 5 days so that the Court can make an order as to the temporary placement of that child. Ask the CAS caseworker to provide the warrant authorizing the removal 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 first court appearance. This court appearance will generally take place by videoconference, so be sure that you are also provided with the link so that you can participate.

Before the first court appearance, you should be provided the following court documents:

• Notice of Motion by the CAS (Form 14).

• 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 (Form 14A).

• Warrant to Bring Child to a Place of Safety (Form 33A) and/or Information for Warrant to Bring Child to a Place of Safety (Form 33).

• Protection Application or Status Review Application (Form 08B)

• Plan of Care (Children’s Aid Society) (Form 33B)

• Blank Answer and Plan of Care (for parties other than CAS) (Form 33B.1).

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 to get a sense of your rights in your case. Because of the short timeline between the removal of a child and the first court appearance, your first contact with a lawyer will most likely be with the Duty Counsel 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 with your lawyer:

• 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. Where your child or children were removed from your care, there should also be a Notice of Motion and one or more affidavits 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 Protection Application or Status Review Application. It is helpful to have this information at hand, whether it is handwritten or done electronically. This will require you to read the court documents. If you feel it will be difficult for you to review the court documents on your own, ask a friend or family member to help you.

• Information about your plan of care: As part of your initial meeting with a lawyer, information will also 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 Interim Society Care, which means that a child will remain in the care of the CAS (i.e.: foster care) for a period not exceeding 12 months.

• An order for Extended Society Care (previously known as 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. An order for Extended Society Care 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 in a child’s best interests.

What is an Openness Agreement or an Openness Order?

Openness is defined as post-adoption contact between a child in Extended Society Care that has been placed for adoption or has already been adopted, and one or more members of their biological family (such as parents, grandparents, siblings, etc.). Openness 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 between adoptive parents and one or more biological family members that provide details on the frequency and nature of future contact with an adopted child. Every case is unique, which provides Openness Agreements with the flexibility to ensure that continued contact 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. 

Like Openness Agreements, Openness Orders provide children who have been adopted with defined contact with members of their biological family (such as parents, grandparents, siblings, etc.). If changes are required, an Openness Order can be returned to Court to be varied.

When it comes to openness agreements or openness orders, it is important to consult with a lawyer that is knowledgeable in this area to understand your rights and responsibilities.