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Andreas Solomos is on the Children's aid lawyers legal aid panel

Responsible parents take good care of their children, but sometimes mistakes do happen and all of a sudden the Children's Aid Society is on your door-steps. You do not want to have your children taken away and placed in a foster home or even adopted without a chance of you ever getting to see them. Fortunately, in the majority of the cases, your children stay with or returned to you, under your care and custody, with some kind of monitoring or supervision for a few months (if the situation calls for such monitoring or supervision).


Ideally, there should be no intervention by the Children's Aid Society; such intervention, among other adverse consequences, violates your privacy, hurts your self-esteem, causes you doubt about your parenting abilities and causes unnecessary rumours to circulate among your 'friends' and other community members.

In fairness, however, all Children's Aid Societies have a legislative mandate to protect children. After all, children are more vulnerable than adults and are susceptible to abuse.

The bests interests of the children is paramount to cases involving allegations of child abuse, and the Courts will not hesitate to ensure that the child is protected through proper measures in place.

But a good parent does not want to end up in courts fighting to get back his children due to an inadvertent mistake that in the long run will not cause any lasting or severe physical or psychological harm to the child. Our office ensures that your rights as a parent are fully protected and the Court hears 'both sides of the story'. Many families are falling victim to false complaints of child neglect and abuse from overzealous former partners, teachers, former friends and even family members. The Courts know that; but they also know that there are instances where such allegations are well founded.

Even if you erred, do not despair. Our office has helped many parents regain custody of their children, and in the majority of these successfully stories the parents had to work hard to demonstrate parental abilities and sound parenting practices - not in the eyes of the Children's Aid Society but in the eyes of independent arbiters such as judges. Thus, legal argument and skilful persuasion would be helpful but not helpful enough if the parent is irresponsible and fails to meet normal expectations as regard his/her parental duties. Drug and alcohol abuse, for example, if untreated may jeopardise your ability to parent your children. This law office gets involved not only to represent you in court but also to ensure that your get the help you need through various agencies.

I stay abreast of current child welfare issues and understand how intimidating it can be when a protection representative from the Children's Aid Society shows up.

With more than
30 years of experience in family and child welfare law, I can help you navigate through the hazardous undercurrents of allegations of child abuse.


 
toronto family lawyer children's aid

Child Welfare Legal Defence Services

  Representing parents on Children's' Aid Society applications seeking to find children in need of protection

  
Acting for parents on Society applications seeking that the children be made Society wards

                                          

  Acting for parents on Crown ward applications

  
Acting for relatives (i.e.; grandparents, uncles, aunts, brothers, sisters etc.) in connection with the above child welfare proceedings.


The First Appearance and Negotiations in Child Protection Cases-Children's Aid

Where a children’s aid society believes that a child is in need of protection from the child’s parents and other custodians, and a court order is required to protect the child, the CAS must bring an Application to the court on notice to the persons having charge of the child.


If the time required to make an Application would result in the child being at risk, the protection worker may act to protect the child first, and seek a court order afterward. If time permits, the worker first obtains a Warrant of Apprehension from a Justice of the Peace. If the time required to obtain a warrant would result in the child being at risk of harm, the worker may apprehend the child without a warrant. Police have the same powers of apprehension as a child protection worker.

When a child has been removed and brought to a place of safety, the society must, within five (5) days, either return the child to the person who had charge prior to the intervention or to the person who has a custody order that is enforceable in Ontario, or enter into a Temporary Care Agreement with the parent, or bring the matter to court for a hearing.

“Bringing the matter to court” means the society must commence a Protection Application, and generally the society will also bring a motion regarding the temporary care and custody of the child pending final disposition of the Protection Application.

As a result of the short time frame, the parent is often advised orally about the court date and time, and may be served with copies of the society’s documents at the courthouse. If the parent retains a lawyer before the first appearance, the lawyer will contact the society for copies of the society’s Application, notice of motion, affidavit(s) and other court documents.

On the first appearance, the court generally has only the society’s evidence before it.  Normally the parents’ lawyer would ask for an adjournment to file responding material, such as an answer and plan of care, a notice of motion for a temporary care and custody and an affidavit in support.

The onus is on the Society to establish on credible and trustworthy evidence that there are reasonable and probable grounds to believe that there is a real possibility that if the child is returned to his parents, it is more probable than not that the child will suffer harm and the child cannot be adequately protected by terms and conditions of an interim supervision order.

On the first appearance, the lawyer for the children’s parents may wish to argue for the return of the children.  There are occasions, however, that the Children's Aid Society cannot meet this test on the face of its own affidavit materials before the Court on a First Appearance. If that is the case, the parent's lawyer can bring this to the attention of the Court and argue for the return of the child on the First Appearance. This does not prejudice parent's lawyer in still requesting a temporary care and custody motion at a later date so that the parents' responding materials can be filed if this argument at the First Appearance is not successful. Lawyers appearing on child welfare matters normally request that any temporary care and custody order made at the First Appearance be made on a without prejudice basis so that the parent can then file responding materials and the motion can be argued at a later temporary care and custody motion.

Under the Child and Family Services Act, the court cannot adjourn for more than 30 days without the consent of the parties. Depending upon the circumstances, it may be in the parent’s interests to request as brief an adjournment as possible (in order to argue as soon as possible that the child should be returned), or seek sufficient time to make a realistic plan before arguing the motion (especially if resources need to be put in place to shore up the plan).

If an alternate family or community member is proposed as the caregiver, notice of this plan should be brought to the society’s attention as soon as possible as it may take some time for the society to assess the plan. Proposing an alternate family member at this stage does not mean that the parents are acknowledging that they cannot care for the child. The parents’ position may well be that they wish the return of the child, but in the event that is not the outcome, there is an alternate plan available. This approach can reduce delay if it becomes obvious that the child cannot be safely returned to the parents’ care.

If the child has been removed and placed in foster care, he or she will most likely remain in the CAS placement on a “without prejudice” basis following the first appearance. The lawyer for the child’s parent can seek an access order that maximizes the amount of contact with the child during the adjournment while being sufficiently realistic that the parent will manage to attend at all ordered and scheduled visits and will not be unduly disruptive to the child. The access order set up at the first appearance often sets the stage for future developments in the case.

When an application is commenced without the child having been removed (for example, where the society is seeking a supervision order on notice), reasonable notice should be given to the parties so as to enable them to prepare responding evidence in advance of the first appearance.

Negotiating Children's aid cases
The parties may negotiate the terms of a temporary or final supervision in advance rather than or in addition to filing responding materials.
At any stage of the proceeding, the parties have an obligation to consider alternative methods of dispute resolution such as mediation. If mediation might settle the dispute, the parties should move quickly to put this in place.
Family law and child protection negotiation demand frank honesty, flexibility, and imagination. Child protection cases are not set in a win/lose dichotomy. Apart from any situations involving criminal sanctions for child abuse, this exercise is not a power struggle and is not about blaming (although invariably blame does become part of the arguments). There should be a search for workable solutions that respect the needs of the child and the abilities of the parents in the context of available community resources.
However, throughout the negotiation or mediation the one item that is not negotiable is the safety and security of the child.
A lawyer doing children's aid work should engage in effective negotiations that would endeavour to achieve the following:
• Minimize society-parent hostility;
• Reduce the intensity of interfamilial disputes;
• Move toward stability;
• Design and adopt a plan of care satisfactory to the society in which the parents are emotionally invested as co-creators;
• Enable services to be implemented promptly;
• Agree as to all or some of the facts giving rise to the child being apprehended;
• Keep the focus on the identification of issues, and problem-solving
• Avoid last minute rushed court house corridor agreements that leave the parents feeling coerced and powerless.

What Can Be Negotiated
Social workers working for the society are responsible for considering negotiation. They have a statutory obligation to ensure that any agreement made (in mediation or otherwise) is consistent with the safety and well-being of the child. Facts cannot be mediated, including facts about the existence or non-existence of abuse or neglect. What can be mediated is the course of action parents and the Director follow as a consequence of those facts.
Among the issues that can be negotiated at traditional negotiation or in mediation include:
• What services the society can offer the family, and obtaining agreement that the family will cooperate with as part of a plan of care;
• What ancillary services by volunteers or society employees that will allow a parent to participate in the identified programs;
• Determining what changes in the child’s home environment will ensure the child’s safety, and then enlisting the parents’ cooperation;
• Whether and how the child’s safety is to be preserved by making arrangements for the child to reside with family or friends;
• How long the child will be in the care of the child protection society;
• Making a plan to ensure the child’s participation in and exposure to cultural, racial, linguistic, and religious heritage while the child is in the society’s care;
• The details of any supervision order, including meeting dates with the social worker;
• The terms necessary to apply for an order by consent—including the extension of an existing order;
• Whether or not parents can have any input into selecting the child’s foster placement;
• How and when the parent or others in the extended family and the circle of the child’s adult and older child friends will have contact with the child by phone, mail and in person, and whether any pre-existing pattern of overnight visits with third parties (for example a regularly monthly sleep-over at Grandma’s);
• The amount and structure of a parent’s financial contributions towards the maintenance of the child in the society’s care.

Who Should Participate At the Negotiations?
The ideal negotiation or mediation would involve participation by all the chief parties.
• the parents;
• the parents’ respective lawyer;
• the child protection society’s lawyer;
• the family service worker;
• the child’s social worker;
• the supervising social worker;
• the child’s lawyer, if any;
• the child, under certain circumstances ;
• the mediator, if any.

There may be circumstances when the child's presence in part or all of the discussion can be useful for the mediator. Whether the particular child or children would benefit emotionally by participating should be in the sole discretion of the mediator after the mediator has met alone with the child (and Children's lawyer if one is acting for the child).

The children should not be coerced or forced to express a view or make a decision or take part in mediation meetings by any of the parties or their lawyers. If the children are participating in some of the mediation discussions, care must be taken to ensure that all parties and the children and their respective lawyers are clear that the children are not being asked to make any decisions concerning the parenting plan being worked on, nor are the children being expected to take sides, or to provide evidence for or against any parent or caregiver. If the children participate so too should the Children's Lawyer, if appointed in the case.


In child protection cases there are three basic categories of negotiation:
1. Lawyer – Lawyer negotiation between lawyers for the parents and the lawyer representing the child protection society.
2. Mediation in which the parents and the society’s responsible personnel, usually in the presence of their respective lawyers, negotiate directly with each other, facilitated by an appropriately trained and experienced mediator pursuant to an agreement to mediate that spells out the procedure.
3. Judicial Pre-trial Settlement conference.

Parental involvement with negotiation and mediation will meet the parent’s need to be involved in arriving at a plan of care that serves the best interest of their child. The parent is more likely to feel respected and understood through this process. Participating in arriving at a solution will provide the parent an emotional investment in the outcome plan of care, and will increase the likelihood of compliance and cooperation with the society.


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