FAQ: Child Protection

Find out the answers to frequently asked questions ("FAQs") with regard to family law and other legal issues.

CAS and the Duty of Care

In many matrimonial matters where a child’s safety and security is at risk, the Children’s Aid Society (“CAS”) will be involved in the matter.

CAS workers have a duty of care to the children they are mandated to protect. However, do they have a duty to the family of these children? If a parent was negligently wronged by a CAS worker, does he/she have a claim against the CAS?

In the case of Pereira (Litigation guardian of) v. Ontario, 2015 (Ont. S.C.J.), Justice Dunphy cites the leading case on the issue, Syl Apps Secure Treatment Centre v. B.D. (S.C.C.) and he explains that the CAS does not have a duty of care to the parents.

Justice Dunphy explains as follows:

“[T]o recognize such a legal duty to the family of a child in their care, would pose a real risk that a secure treatment centre and its employees would have to compromise their overriding duty to the child. I also agree with Sharpe J.A. that the duty of care pertaining to the relationship between children in need of protection and those who are charged with their care should be clearly defined on a categorical basis, rather than being left in a fluid state to be resolved on a case-by-case basis.

I would not, as a result, recognize such a new legal duty. It follows that, in my view, it is “plain and obvious” that the statement of claim discloses no reasonable cause of action against these defendants.”

It is to be noted that recently in R. (c) V.  Alberta (Director of Child and Family Services) 59 R.F.L. (7th) 124 (Alta. Q.B.) costs were awarded against the CAS in the amount of $11,000.00 where it was found that the director was far too one-sided and did not present a fair review of the situation to the Court.

To learn more about the CAS as well as the services provided by Krol & Krol, call 905.707.3370 today.

Litigation Guardians and Child Support

Does the Family Law regime in Ontario require a children to appoint litigation guardians prior to their request for child support?

The case of M. (C.M.) v. C. (D.G.) overturned a decision by Justice Darla Wilson and ruled that a child does not necessarily need a litigation guardian to ask for child support.

Justice Sachs ruled that the Family Law regime is completely different from that of Civil Law in terms of children participating in litigation. The difference is that that in a Family Law case, the central focus is on whether the child is in need of representation. The Court is not faced with an obligatory task of finding the child a parent to receive and give instructions if the child is independent and does not require a litigation guardian.

Essentially, Justice Sachs highlighted the fact that nowhere in the Family Law Rules does it make mention of any sort of obligation on the child to appoint a litigation guardian prior to his/her request for child support. This was in contrast to the Rules of Civil Procedure, whereby Rule 7.01(1) clearly requires the appointment of a litigation guardian.

However, although the Family Law Rules do not specifically allude to an obligation to appoint a litigation guardian, earlier cases witnessed judges taking note of Rule 1(7) of the Family Law Rules which allow the trier of fact to resort to the Rules of civil procedure.

To learn more about litigation guardians as well as the services provided by Krol & Krol, call 905.707.3370 today.

Vacations – Non-Hague Countries

As was the central issue in the case of Purushothaman v. Radhakrishnan, courts are often faced with a parent requesting that the court prohibit his/her (former) spouse from taking a child on vacation to a non-Hague country.

In Mahadevan v. Shankar, Justice Pazaratz ruled that, when face with said motion, the Court must weigh the benefits of travelling as against the plausible risks. The weighing process is based on factual evidence, and therefore depending on the facts of a case, the decisions will vary in terms of whether to allow the parent to travel to a non-hague country with the child.

In the case of Purushothaman v. Radhakrishnan, the father applied to have the court prohibit the mother of their child from travelling back to India with the child.

The father cited various reasons in support of the motion. He argued that the mother would abscond to India with the child and never return based on the following facts:

  • The mother had all her family residing in India;
  • The mother had overstayed and delayed her previous vacation to India;
  • The mother is not yet a Canadian citizen; and,
  • The child is too young to benefit from the trip.

The mother presented the following factual evidence in support of her case to travel with her child to India:

  • She has lived in Canada for 8 years;
  • She has a full-time job;
  • She own a condominium;
  • She recently purchased a car;
  • She has submitted an application for Canadian citizenship; and,
  • Her child is a Canadian citizen.

The court performed the test as set out in Mahadevan v. Shankar, and found that the cultural benefits to the child significantly outweighed the risk that the mother would abscond to India.

To learn more about vacations as well as the services provided by Krol & Krol, call 905.707.3370 today.

Crown Wardship – Best Interests of the Child

Family Law courts in Ontario constantly stress the pinnacle goal and objective when hearing a motion or ruling at trial; the best interests of the child will be the primary concern and basis for the court’s ruling.

There are circumstances when a Court will rule in favor of a Crown Wardship Order. These motions are brought by way of summary judgment for specific reasons. Ultimately, children should not be the victim of a delayed parenting plan. A parent should not be awarded the time to become a “good” parent. If the factual evidence proves that there is merely a triable issue that the best interests of the children are with the Crown and not the child’s biological parent, than a trial will take place without further delay.

As Justice Pazaratz stated in Children’s Aid Society of Hamilton v. M. (A.), 2012 CarswellOnt 15067 (Ont. S.C.J.),

“Summary judgment is a tool to control a child’s drift in litigation and allow for a permanent home for the child within a time-frame that is sensitive to the child’s needs. The legal process should not be used to “buy” a parent time to develop the ability to parent. (Children’s Aid Society of Toronto v. H. (R.), 2000 CanLII 3158 (ON CJ), [2000] O.J. No. 5853 (O.C.J.), paragraph 15)). In child protection proceedings, there is an overriding statutory imperative to ensure that the commencement of permanency planning for children is done in a timely fashion (Children’s Aid Society of Ottawa v. C. (S.), reflex, 2003 CarswellOnt 9373 (S.C.J.).”

 

Furthering this notion, Justice Harper, in Children’s Aid Society of Hamilton v. R. (K.), 2014 CarswellOnt 14930 (Ont. S.C.J.), stressed that the Child and Family Services Act highlights as its underlying theme the imperative responsibility of the courts to bring these cases as soon as possible so as not to compromise the well-being of the child.

To learn more about crown wardship orders as well as the services provided by Krol & Krol, call 905.707.3370 today.

Child Protection Trials

Once the parties are at the stage in the child protection proceedings where they are to attend a final hearing, the court has an obligation in child protection trials to primordially decide whether the child is in need of protection. Once the court has determined that the child is in need of protection, then it can decipher whether a court order is essential for the child’s protection.

The types of orders that a court may make in child protection trials are outlined in section 57 of the Child and Family Services Act (CFSA) and coincide with the legislature’s intent to allow the child to stay within his/her family and/or community:

57(1): “Where the 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 shall make one of the following orders or an order under section 57.1, in the child’s best interests:

Supervision order

1. That 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 12 months.

Society wardship

2. That 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.

Crown wardship

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71 (1), and be placed in the care of the society.

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 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.”

In section 57.1 CFSA, the courts now have a new type of order at their disposal; specifically, the courts can grant custody to someone other than one of the foster parent.

To learn more about child protection trials and other services provided by Krol & Krol, call 905.707.3370 today.

Customary Adoption

In the Aboriginal culture, customary adoption is a vital aspect and is thus prevalent in Aboriginal communities. The case of Re Tagornack outlines the four criteria for a customary adoption to have legal implications and take effect:

  • Proof that the custom existed back in time as far as living memory;
  • It must be a reasonable custom;
  • It must be “certain in respect of its nature generally, as well as in respect of the locality where it is alleged to obtain and the person whom it is alleged to affect”; and,
  • It must have never been interrupted since it started.

What was noteworthy about the case was that the judge rules in favor of the customary adoption despite the father not being from Indian or native background. The judge ruled in favor of the adoption due to the fact that the father had accepted the native customs and the native people had accepted him. Everyone involved in the adoption; namely the prospective parents and the community, stood behind the adoption.

The court in Tagornack also strengthened its position by citing the Constitution Act 1982 section 35(1) which states as follows:

35.(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

To learn more about customary adoption as well as the services provided by Krol & Krol, call 905.707.3370 today.

Indian or Native Child Protection

When courts are faced with family law cases involving issues such as adoption, placement and custody, they are obligated to render their decision with the best interests of the child in mind.

This is especially relevant when the court is faced with an issue regarding an “Indian or native” child. The Child and Family Services Act compels the judicial system to always emphasize the seriousness of recognizing the uniqueness of the Indian and native heritage, culture and traditions, and thereby allow the child the opportunity to retain his native cultural values.

It is interesting to note the measures that the Child and Family Services Act is willing to take to attempt to preserve and perpetuate the cultural identity of the Indian or native child. For example, section 47(2) of the Act states:

47. (1)Where an application is made under subsection 40 (1) or a matter is brought before the court to determine whether the child is in need of protection, the court shall hold a hearing to determine the issue and make an order under section 57.

(2)As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine,

(a) the child’s name and age;

(b) the religious faith, if any, in which the child is being raised;

(c) whether the child is an Indian or a native person and, if so, the child’s band or native community; and

(d) where the child was brought to a place of safety before the hearing, the location of the place from which the child was removed

As is stated above, the Act obliges the court to probe into whether the child in need of protection is Indian or native, so as to ensure that it takes into account the necessary factors to preserve the Indian/native identity of the child.

Finally, section 57(5)(c) furthers the notion that the court must place an emphasis on facilitating the ongoing Indian identity within the child as it states that an Indian or native child shall be placed with “another Indian or native family.”

To learn more about Indian or native child protection as well as the services provided by Krol & Krol, call 905.707.3370 today.

DNA Paternity Testing

Generally, any father seeking leave to obtain DNA testing to confirm that he is the father of his wife’s child, may do so. However, the Court ruled in F. (M.) v. S. (R.) that a father’s application seeking leave for DNA paternity testing will not be granted where the child’s health may be affected or the request to have the DNA paternity test is made in bad faith.

In the case of Griggs v. Cummins, the father sought leave to have a DNA paternity test performed on his young child, to which the court ruled that, barring any health concerns or bad faith intentions, it would be in the best interests of the child to be made aware of his/her real biological father. Additionally, the court noted that it would also be in society’s best interest to know who the obligation of support falls upon. Thus, the judge allowed for the DNA paternity testing of the child.

However, subsequent recent case law has suggested that DNA may not be in the child’s best interest, and courts should perhaps be reluctant to granting the DNA paternity tests, as it may result in a possible outcome where the child is left fatherless.

Interestingly, Justice Howden in Griggs v. Cummins, required that the father pay for the DNA test, despite the possibility that the DNA paternity test may point to an alternative biological father.

To learn more about DNA paternity tests as well as the services provided by Krol & Krol, call 905.707.3370 today.

Crown Wardship orders: the important factors that courts take into account

A Crown Wardship order is an order that allows the Court to take someone’s children from them. After determining that it is in the best interests of the child that he/she no longer live with his/her parents and there are no other options left for the child, the Province will accept all rights and responsibilities for the child.

In the case of Children’s Aid Society of Toronto v. U. (E.), Justice Sherr ruled that a 10 year old child required protection. Justice Sherr referred to Section 37(2) of the Child and Family Services Act to define exactly which children are in need of protection. He also highlighted the distinctive nature of child protection proceedings as opposed to other prevalent forms of civil litigation that, in the former, evidence of whether the child required protection could be introduced and admitted at any time until the day of the court hearing, so long as there was adequate disclosure to all parties.

In his ruling, Justice Sherr emphasized that if the court is to come to a decision whereby the child will be taken from his parents (crown wardship), it must take extreme caution in carrying out the order, there must be compelling evidence that supports the order, and the court must have taken into consideration all possible alternatives.

Finally, Justice Sherr reiterated that due to the distinctive nature of the proceedings in child protection cases; that evidence could be admitted up the date of the court hearings, in order for the court to return the rights and responsibilities of the child to his/her parents, the court must be convinced of the fact that the risk present at the time of the apprehension of the child has been dealt with and that it would be in the child’s best interests to return home to his/her parents.

To learn more about how dividends affect child support as well as the services provided by Krol & Krol, call 905.707.3370 today.

Are Child Protection Societies who hire private investigators required to provide the other side with the resulting surveillance tapes?

The case of Chatham-Kent Children’s Services v. T. (R.) from the Ontario Court of Justice speaks to this issue.

Facts: The mother in this case discovered that she was under surveillance by the Society and wanted the Society to disclose the surveillance evidence.

Ruling on Motion: The surveillance did not need to be disclosed given that the Society did not seek to rely upon it. He states that “[t]he fact that surveillance took place at certain times with negative results is … irrelevant and a waste of the court’s time and resources …”

Held on Appeal: The Appeal judge applied to test enunciated in Stinchcombe and determined that the mother was entitled to receive the information with respect to the surveillance so long as it was not protected by litigation privilege (which attaches to documents obtained by a lawyer or his or her agent from third persons, if they were obtained for the dominant purpose of litigation). The Judge found that even if the work products were protected by litigation privilege, the Society was still required to provide the mother with the particulars surrounding the surveillance, including:

1. Dates, times, and location of surveillance;

2. Specifics relating to the activities and the observations that were made; and,

3. The names and addresses of the individuals that conducted the surveillance.

Accordingly, Justice Heeney ordered that the Society provide the mother with an Affidavit outlining the above-noted particulars.

Should you require more information on the issue of surveillance in your family law case, contact Krol & Krol, a boutique law firm specializing in family law at 905.707.3370 for a consultation today.