Children’s Aid Societies Cannot Stop Parenting Time
Only A Judge Can Change A Parenting Order
Children’s Aid Societies do very important work protecting vulnerable children from abuse and neglect in Ontario. The child protection agencies frequently get called into parenting dispute between separated parents (formerly called custody-access disputes). This is because one parent wants to stop the children from seeing the other parent. Sometimes, there are legitimate concerns about family violence or child abuse. However, often it is just because trust between the parents has broken down so much that one starts believing the other is capable of hurting the children. In some cases, one parent is deliberately trying to hurt the other parent by cutting off that parent’s relationship with the kids.
Regardless of why a parent is trying to stop the kids from seeing the other parent, many of them turn to the local children’s aid society to intervene in the family. When the agency starts investigating, frequently the complaining parent tells the other parent that he or she cannot see the children at least until the children’s aid society is finished. That can be very upsetting for the parent who is being excluded from the children’s lives.
Things can really escalate if the parenting conflict is in Family Court. The parent who went to the children’s aid society may try to tell the judge that the agency said there should be no contact between the children and the other parent.
It is very unlikely that a child protection worker will tell a parent that the agency does not want the children to have contact with the other parent – unless the children’s aid society is about start its own court proceedings. That is because a children’s aid society does not have the legal authority, on its own, to stop a parent from seeing the children.
Children’s aid societies have limited legal authority
In Ontario, Children’s Aid Societies, are governed by the Child, Youth and Family Services Act, 2017 (CYFSA). Nothing in that Act gives Children’s Aid Societies the power to take children away from their parents, or to stop children from seeing their parents. Instead, it gives that power exclusively to the Family Court. The whole system is based on having Family Court Judges “referee” the interactions between children’s aid societies and parents. So, when a children’s aid society wants to take children away from one or both parents, it has to start court proceedings and ask a judge to make that order.
This also means that children’s aid societies do not have the power to change a parenting order (or agreement). Only a judge can change a court order. Parents have to agree to change a formal parenting agreement. A children’s aid society may pressure parents to agree, but if a parent does not agree, the children’s aid society cannot, on its own, stop a parent from spending time with the kids.
The Children’s Aid Society of Brant tried to tell a mother she could not see the children without going to court. In Children’s Aid Society of Brant v. C.H., the judge explicitly said that the children’s aid society could not do that. The Children’s Aid Society has to go to court if it wants to limit contact between a parent and child – especially if there is a parenting order in place. If a Children’s Aid Society wants to prevent children from seeing a parent, not only must it start court proceedings to get that permission, but section 88 of the CYFSA says there must be a hearing before a judge within five days. In Children’s Aid Society of Brant v. C.H. the judge decided that because it took 11 days to get to Court, the Court did not have any jurisdiction to make an order. That included making an order limiting a parent’s time with the children. So, nobody had the authority to stop the children from seeing their mother and things went back to the way they were before.
If a CAS wants to block a parent, it will go to court
A parent may go to Family Court and say that the Children’s Aid Society told that parent to raise the concerns in existing court proceedings between the parents. It is true that children’s aid societies would prefer that parents address any concerns about the other parent through the existing court appearance when there are no immediate safety concerns. The CAS does not want to be in the middle between two warring parents. That is the judge’s job.
Where the children are at immediate risk of harm, the children’s aid society will start its own proceedings – even if the parents are already in Family Court. Section 103 of the CYFSA says that if a children’s aid society starts a court proceeding, any family court proceeding related to the parenting of the same child is stayed. That means that the judge cannot make any parenting orders in the parenting case until the children’s aid society’s case is finished. If the children’s aid society believes that the kids should not see a parent, it can go to Court to get an order that says that. Or, it can put it in writing that the agency will go to Court to ask for such an order if both parents do not agree. Then the parents will either agree or one parent, or the CAS will go to court.
However, a Family Court judge is not likely to believe a parent who says the children’s aid society wants to prevent the other parent from seeing the kids if the agency has neither started its own court proceedings, nor told the parents in writing that they must sign an agreement limiting contact or the agency will go to court. If the Children’s Aid Society believed that there was an immediate risk of harm to the child, it would take those actions. So, the Family Court judge is likely to think that the children’s aid society did not think there was an immediate risk.
Complaining to the CAS can backfire
A parent complaining to a children’s aid society about his or her ex looks really bad unless the agency finds there is an immediate risk of harm to the child. Most parenting disagreements do not elevate to the level where the children are at risk. It may just be the conflict itself that puts the kids at risk.
However, manyy professionals think that making false or misleading abuse or neglect allegations against another parent is “alienating behavior.” In other words, it is a sign of parental alienation. While in other jurisdictions, judges are suspicious of parental alienation allegations and the treatment programs, Ontario Family Court judges are not. They can be very critical of parents who involve a children’s aid society unless the children’s takes real steps to protect the children. A parent can find him or herself in big trouble if that parent prevents the other parent from seeing the kids without a court order either in a parenting case or child protection case. If the judge cannot find a reasonable basis for a parent taking that action the judge may take the kids away from that parent. The parent alleging abuse can lose the kids to the alleged abuser.
Parenting cases can be high stakes litigation where the best course of action may not be instinctive. In fact, for many people following their instincts in Family Court can lead to disaster. The video to the right explains that in a more detail. Still, these are cases where parents really need good advice from a strong family law and child protection lawyer. That professional can evaluate the concerns and put together an effective plan to address those concerns.
Get Help With Your Parenting Case
Family Court can be complicated with lots of pitfalls and dangerous paths. Doing the wrong thing can have horrendous consequences. Unfortunately, a Family Court Judge’s decision can affect the rest of your life – and the life of your children. Before you go to Family Court, read this $9.99 eBook on Ontario Family Law (paperback also available). It explains the Family Court process in detail. It also explains the most important parts of Ontario Family Law so you know what to expect and do not make a fool of yourself in front of. judge.
To get the best advice, specific to your situation, you should speak to a family lawyer. Certified Specialist in Family Law, John Schuman, is known for his concern for children in separation and divorce and has won many parenting cases. To contact John call 647-342-6774, email him, or fill out the form below. You can use the same form to comment on this page.