Can I Get Custody of My Niece Because Her Father is Abusive?

Niece who is being abused by parents

Ontario Law does allow you to seek custody of your nephew - especially in the circumstances where a child is being abused.  Doing that does allow you protect your niece and ensure that loving family members are the ones looking out for her.  However, if the abuse is putting the child at immediate risk of harm (or has caused the child to suffer harm already), then you should contact a Children’s Aid Society.  A Children’s Aid Society can intervene immediately if necessary.  Going to court in  custody case may take days, or weeks, and that could be too long if the child will be badly harmed before a judge can intervene.  Still, if the child will be safe for several days, then a custody proceeding may be in her best interest because the options for her care stay within the family.

Bringing a Custody Case

Section 21(1) of the Children's Law Reform Act allows the parents of a child or "any other person" to apply to court for an order respecting custody of or access to a child.  When a Family Court Judge decides a child custody case, that judge must consider several factors, which are explained on this webpage in this podcast.  How close the child is with you and her father, and her mother is one factor.  Another is the ability of each person to "act as a parent."  There are several other factors and if you are going to seek custody you should take the steps necessary to make as many of them in your favour as possible.  However, section 24(4) of the Children's Law Reform Act says a judge must consider any violence perpetrated by anyone seeking custody and that is big factor for judges.  In fact, section 21 of the Children’s Law Reform Act requires all the parties to a custody proceeding to file a Form 35.1 Affidavit, which require the party to reveal all past and pending criminal charges and any involvement in violence to which a child may have been exposed.  Proven substance abuse issues are also a really big concern for Family Court Judges.

The Family Court process that you may need to follow is described in this video and is set out in more detail in a series of podcast episodes that starts with this one.  Read this page to find out specifically what you have to do to get an emergency custody order. If you do not want a children’s aid society to become involved to protect your niece, then you will have to convince the presiding judge that the risk of harm constitutes and emergency - but no so big an emergency that the children’s aid society should step in. 

Ask to Care for Your Niece After the Children
’s Aid Society Has Intervened

If a children's aid society finds out that your brother has substance abuse issues and has been violent in the home, especially in front of a child, that agency will be very concerned about whether your niece is suffering emotional harm.  The agency may apprehend your niece and put her in foster care. If that happens, you should act very quickly to put forward a plan to care for your niece, rather than having her stay in foster care.  Section 51(3.1) of the Child and Family Services Act says that a Court must give priority to placement with family members over ordering that a child remain in foster care.  There is a really big advantage to you presenting that plan to the CAS and then to the court at the first hearing, which is 5 days after the CAS apprehends.  But, if the CAS gets involved, you will have absolutely no control over the process and the CAS may decide your niece should be adopted rather than returned to any family member.  So, it would be better to avoid the CAS becoming involved by seeking custody before that happens.


Next Steps

Obviously, the best way to ensure that you protect your niece and you are successful in your family court case is to get the help of a good family law lawyer who can present your case in a persuasive way, make sure that the judge hears how all (or at least most) of the factors that related to child custody support your case and makes sure you prove your case in accordance with the rules of evidence.  John Schuman is a Certified Specialist in Family Law who, in his many years of practice as a child custody lawyer in the Greater Toronto Area, has handled many difficult child custody cases.  He is known for his concern for children’s rights, and his sensible and effective approach to these cases.  In one particularly difficult child custody case, Justice Sherr noted, “Mr. Schuman’s conduct in this case is an example of what lawyers are supposed to do in difficult cases.”  To contact John Schuman, call 416-446-5847, email him, or use the form below.

You can learn a lot more about custody cases, family court, and how to succeed in your custody case (or other family law case) by getting a copy of this $20 easy-to-understand book on Ontario Family Law It also has many tips to get what you want, and avoid getting in trouble in child custody and access cases.

The Guide to The Basics of Ontario Family Law


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