Category: Child Protection

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: Dates, times, and location of surveillance; Specifics relating to the activities and the observations that...

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, then 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....

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...

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/her 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. 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. As soon as practicable and in any event before determining whether a child is in need of protection, the court shall determine, The child’s...

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...

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....

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. 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 Office of the Children’s Lawyer (OCL) is a division of the Ministry of the Attorney General of Ontario. The OCL represents children who are under age 18 in litigation involving custody, access, child protection, estates, trusts, and civil litigation. Under section 89 of the Courts of Justice Act, a lawyer from the OCL may be appointed to represent a child’s legal interests in a custody or access proceeding. Pursuant to section 112 of the Courts of Justice Act, a clinical investigator, who is usually a social worker, may make an investigation as to the views and preferences of the child(ren) with respect to a custody or access proceeding. Even if a Court requests their appointment, the OCL may decline to become involved based on their intake criteria. The OCL may not accept involvement in the following situations: “The child resides outside of Ontario; The child and/or either parent/party does not reside where the action is being conducted; There is an outstanding or anticipated order for assessment or mediation, or an assessment or mediation is pending; An assessment has been completed about custody and access in the year preceding the request; A review of the case history indicates that there...

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...

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...