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Tips: Child protection court

Ontario
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If child protection authorities have become court-involved with your family, you may find these tips helpful. A child protection case is different from either criminal or family court, in part because the authority of the child protection agency is set out in law, under the Child and Youth Family Services Act (CYFSA).

A child protection court case is initiated by the Children’s Aid Society in those few cases where the agency believes there is ongoing risk to children that cannot be resolved any other way.

You may have a criminal and/or family court case going on at the same time as your child protection case.

You will receive court documents from your local child protection agency explaining the concerns for your children’s safety and describing what outcomes it is looking for. These outcomes will involve orders from the court.

Child protection authorities are permitted by law to remove children from their families and to ask a judge to make a court order to protect children if there is evidence that the children are at risk of being harmed. If the child protection agency has removed your child from your care without your written consent, this case must come to court to be heard by a judge within five days.

On the other hand, if the agency is leaving the children in your care and wants a supervision order, the court date will be set based on availability in the near future.

Papers from CAS

The legal documents that you receive from the child protection agency will begin the court case. These papers are very important.

Read them carefully and keep them in a safe place. Take all of them with you when you go to see your lawyer. You and your lawyer must attend the court at the time and place stated in the papers.

In these papers you will find:

  • Form 8B, Application: This is the main document that starts a case in family court and includes the court date and time, the names of the people involved, orders requested and the reasons those orders should be made. In a child protection case, the child protection agency is the Applicant and you and/or your ex-partner are the Respondent(s).
  • Form 14, Notice of Motion: This form is used to request a temporary order.
  • Form 14A, Affidavit: This is a sworn statement that is used as evidence in court. The child protection worker will prepare an affidavit, as will you when you respond to the Application and/or Notice of Motion.

What can a child protection agency ask for in court?

A Supervision Order places a child in the care and custody of the parent or another person, subject to supervision of the agency, for a specified period of at least three months and not more than 12 months.

OR

A Society Wardship Order makes a child a ward of the Child Protection Services and placed in its care for a specified period not exceeding 12 months. The child may be placed with an approved kinship family (a safe guardian already known to the child) or a foster family.

OR

A Crown Wardship Order, with or without access, can only be made after a specified period of time that the child has been a society ward, and there is no plan for the child to return to the parents. This period of time is 12 months if the child is under the age of 6 and 24 months for a child over the age of 6. Once a child becomes a Crown Ward, they can be placed for adoption and will not be returned to the birth parents.

Child protection agencies may also ask for orders specific to your case, which they believe to be in the best interests of the children. This may have to do with parental or sibling access, schooling, counselling, etc.

Preparing for court

Make arrangements so you can attend court on the date and at the time specified by your worker or on the court documents.

Interview lawyers as soon as you are told that the child protection agency is taking you to court.

If you cannot afford a lawyer, you can apply for a legal aid certificate. Be sure to tell Legal Aid Ontario about the abuse you have been subjected to by your partner, as this may help to fast-track your application.

When seeking a lawyer, try to find someone who has experience in both family and child protection court and may be able to represent you for both matters.

Even if you have not retained a lawyer yet, it is important to start working on your paperwork. That way, once you have a lawyer, they will have some information to start working from.

If you agree with what is being asked for in the court documents, it is still best to retain your own lawyer and file documents to respond to what the child protection agency has said in its documents.

You have only 30 days after you get the CAS court papers to file the Form 33B.1: Answer and Plan of Care and to give copies of it to all parties involved in the court case.

If you are not able to retain a lawyer and you do not qualify for legal aid, you will need to file your documents on your own. Seek out legal advice from your local Family Law Information Centre (FLIC) or other services to review your paperwork before filing.

A duty counsel lawyer can provide summary legal advice on your court date and, if you qualify, attend court with you.

Try to arrange to have a women’s legal advocate or Family Court Support Worker attend court with you for support.

Going to court

When you attend your first court date, the judge will read the court papers and make a decision about who will have temporary custody of your children. This could be you, another party to the proceedings, someone in your circle of friends or family or the child protection agency that brought this matter to the court.

If you have not had enough time to file your own court documents before your court date and you want to say something to the judge, be sure to tell your lawyer or the duty counsel lawyer. If you are representing yourself, prepare what you want to say in advance and remember to keep it short and to the point.

Another court date will be set to allow you to have time to get a lawyer and file your court documents. In some cases, the judge will order the Office of the Children’s Lawyer to provide a lawyer for your child.

Each child protection case is different and outcomes will vary. Make sure your lawyer explains each step of your case.

Cases can be resolved if everyone involved agrees about what to do. The agreement has to be approved by the judge. If everyone cannot agree, a judge will make temporary orders and the matter may go to trial for a final decision.

 

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