ARTICLES - Family Lawyer Defending parents in CAS - Children's Aid Cases

Andreas Solomos Law Practice in Toronto
Lawyer for Children's Aid Case
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Controlling Your Anger When Dealing With the CAS
When the CAS comes knocking on your door, one of the most powerful emotions you will experience is anger: anger at yourself for getting into a situation that prompted someone to notify the CAS alleging your children are abused or run the risk of suffering physical or emotional harm; angry at your spouse for causing you all that trouble; or angry at the CAS’s workers for intruding into your life and your children’s lives.
I will discuss the anger you experience toward the Children’s Aid Society or CAS and its employees, agents, and associates.
In Ontario, child protection is governed by the provisions of the Child, Youth and Family Services Act (the Act). The primary purpose of the Act is to promote the best interests, protection, and well-being of children. However, there are additional purposes, so long as they are consistent with the best interests, protection and well-being of children, are to recognize the following:
1. While parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.
2. The least disruptive course of action that is available and is appropriate in a particular case to help a child, including the provision of prevention services, early intervention services and community support services, should be considered.
3. Services to children and young persons should be provided in a manner that,
  i.            respects a child’s or young person’s need for continuity of care and for stable relationships within a family and cultural environment,
  ii.            takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons,
  iii.            takes into account a child’s or young person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
   iv.            takes into account a child’s or young person’s cultural and linguistic needs,
   v.            provides early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests, and
   vi.            includes the participation of a child or young person, the child’s or young person’s parents and relatives and the members of the child’s or young person’s extended family and community, where appropriate.

A Few Comments about Judges
The family courthouse at 47 Sheppard Avenue East, Toronto, is a busy courthouse. It houses many courtrooms that try family and children’s aid cases which fall under the umbrella of the Ontario Court of Justice (Family Court). I was there on a first appearance matter regarding a child protection case involving one of my clients whose two children were apprehended by the local children’s aid society. My client was asking if the judge who was going to preside over the first appearance temporary care and custody motion is biased. I told my client that most judges are fair and reasonable, which is the truth, but sometimes judges render wrong decisions. That is why appeal courts are there to correct these errors.  
Judges have been objects of study for decades, but there has been an explosion in recent years of empirical research about how judges decide cases. The bottom line is that Judges are like anyone else – they differ in their approach at work, can be assessed in a multitude of ways, and do not perform in isolation.
One of the ways that determine how a judge will decide a particular case is the element of what is known as "a reasonable apprehension of bias", which in turn somehow reduces the element of unpredictability. Let me illustrate this by an example.
On April 9, 2013, three distinguished judges of the Ontario Court of Appeal, the highest Court in the Province of Ontario, were listening argument concerning the appeal of two persons who were convicted of conspiracy to produce marijuana for the purpose of trafficking.  On August 26, 2011, the judge who presided over the trial without a jury convicted these two accused, John Huang, and Ying Huang. John Huang was sentenced to four and one-half years’ imprisonment, after six months’ credit for pre-sentence custody and restrictive bail conditions. (see note 1 below for the case citation)
John Huang (the appellant) appealed from his convictions. His principal ground of appeal was that the trial judge’s conduct during the trial; in particular, his intervention during the Crown’s cross-examination of the appellant, gave rise to a reasonable apprehension of bias and undermined the appearance of fairness in this case.
The appeal judges agreed that the trial judge’s impugned comments gave rise to a reasonable apprehension of bias that fatally compromised trial fairness. They found that there was a miscarriage of justice and a new trial is required.

Why Sometimes Good Court Cases Are Lost?

You are the plaintiff. You think you have an exceptionally good case. Your relatives and friends tell you that you can never lose. It has been the experience of this author that on occasion good cases are lost due to the following ten main reasons.
Failing to prepare
Preparation is one of the keys to a successfully court outcome. This means meticulous preparation from start to finish- gathering documents, preparing witnesses, organizing your documents, submitting expert reports, complying with the rules of procedure.  Knowing what to submit and what to leave out is the key. Preparation in child protection cases, for example, involving your case against the Children’s Aid Society or CAS is crucial in persuading the judge on the merits of having the children return to your home under your care and custody.
Confidence is a good thing, but overconfidence can give you a false feeling of security. It is a good thing to be humble with your case and to be a little nervous about it. Being a little anxious will prompt you to do what is necessary to ensure that you improve your chances of success.
Having unreasonable expectations
This may relate to overconfidence but has an aspect on its own. If you expect to get a million dollars and your case is worth only $1,000.00 you create an image of you of someone who is greedy and unreasonable. It is one thing to want to be compensated adequately for your losses and damages and is another thing to have unrealistic demands that will portray you as a greedy individual. Naturally in CAS cases, you want a lawyer to fight for you against the children’s aid society’s allegations. A good lawyer in a CAS case will advocate for you and leave no stone unturned to advance your case. The best children’s aid lawyers I have seen do this all the time. However, it is one thing to want the children to come home under a supervision order and another to want the CAS to leave you alone if there are concerns about your children’s safety that need to be addressed before the local children’s aid society agrees to close its file.
A Handful of Tips on How to Make a Good Impression in the Child Protection or Family (Domestic) Court
We know that first impressions last and influence our behaviour. We should not go out of our way to try to impress someone, but we should be aware that our demeanour will be noticed. When it comes to courtroom demeanour, a first good impression will imprint an image of you in the mind of the judge (or jurors) and may have an influence on the outcome of your case. In theory, judges are supposed to be unbiased and neutral, but in reality, they are influenced by external stimuli, just like you and I. They are not only influenced by what they hear; your overall appearance, body language, the tone of voice and the way you go about asking and answering questions will have an impact on your case.
The Meaning of "Without Prejudice" Communications and Orders in the Legal Context
The term "WITHOUT PREJUDICE" as used in the legal context, has nothing to do with racial or other form of discrimination.
Sometimes your lawyer- if you are not self-represented- will send you copies of his letters to the other lawyers.  These letters may be marked, "WITHOUT PREJUDICE".  The reason your lawyer marks these letters "WITHOUT PREJUDICE" is to ensure that they are classified as privileged and therefore prevent their disclosure to others or their admissibility to court.  
The rationale behind these "WITHOUT PREJUDICE" communications is simple: it is to encourage the opposing parties to a dispute to communicate freely and candidly for the purpose of effecting a possible settlement or compromise of their claims.  

A Few Basic Suggestions on How to Deal with Media Representatives Regarding your Court Case.
Most reporters and journalists are highly ethical and truly professional. Media frenzy often gathers around potentially scandalous and scornful events, highly publicized disputes that end up in court, serious allegations of child abuse or criminal charges involving influential persons. Let us face it. Television stations, newspapers and magazines specifically hire reporters and bureau chiefs to write and report stories that are expected to be of interest to the public. Chances are the more powerful you are, the higher the possibility of your becoming either a media celebrity or media pariah. But even if you are relatively unknown, it takes a few steps to the local courthouse to see your name in the local and sometimes national newspapers.
Be courteous and friendly with reporters but proceed with care when talking to them about your court case. If you are in the middle of an overly sensitive and controversial case, the wisest and safest way is to say a polite but firm "No", or "No comment" to anyone who wishes to interview you, unless the reporter assures you that the interview will be used as background only to assist his or her understanding of the factual and legal basis of your case.
You should be careful not to disclose information that may be used by your opponent to make a stronger case against you. Also be careful not to give the impression that you are intentionally seeking notoriety to advance your cause on the backs of the media "forces". Even if you ask the reporter to conceal the source of the information, many readers, including your opponents and their lawyers will have little doubt figuring out who the source is.

If you wish your remarks to remain "off the record", make sure you express your wishes before the interview begins, and go as far as obtaining written assurances from the editor or bureau chief to protect the sensitive nature of your discussions.  
Proven methods to manage stress and overcome fear of courts, judges, lawyers, and litigants
The psychological factor and psychological dynamics that are present in every legal process are perhaps the most overlooked areas in the whole legal spectrum. Lawyers are trained to concentrate their resources on the legalistic aspects of the dispute, which involve mostly legal rights and obligations. Unfortunately, Law Schools and continuing legal education programs offer little training on the psychological aspects of a legal dispute.
You may have a strong case from the strict legalistic point of view, but what is the use if ultimately you are left with emotional scars that may take years to heal?
The subject of the psychological effects of legal disputes is a study in itself. It is a complex area that involves a variety of topics, issues, and concerns. For example, on the issue of stress caused to children by the experience of preparing and giving evidence in court, some writers feel that there is little research to support the assertion that children do in fact suffer some form of trauma from this experience.
In my experience as a lawyer handling child protection cases in Toronto, Ontario, I know for fact that not only children but also adults find the legal process, especially testifying, a difficult and stressful experience. This article is devoted to the specific issues of stress management and overcoming fear of courts, judges, lawyers, and litigants.
Court Costs in a Nutshell

Many people contemplating a lawsuit should not overlook the issue of court costs which are usually based on eight or more factors, the most important of which are:
a)   The result of the lawsuit (that is, whether you have won or lost).
b)   Whether the party litigant made an offer to settle which was reasonable or unreasonable.
c)    The apportionment of liability between the parties of the lawsuit.
d)   The amount claimed, and the amount recovered.
e)    Whether a step in the proceeding was improper or unnecessary.
If you win your case, you should always seek costs. But there is no guarantee that the courts will order your opponent to pay your costs. In many jurisdictions, courts have an unfettered discretionary in awarding costs. The court may deny you the costs, (which include part or all your lawyer's fees and disbursements) if you mishandled your case, or you were negligent, used wrong or defective procedures or your conduct throughout was oppressive or vexatious.
If there is divided success, the court may apportion costs.
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