C.A.S. Attitude: Win child welfare cases at all costs

It should not be a matter of "win" or "lose" when it comes to Ontario child welfare law. Ontario's Child and Family Services Act tells us that the paramount purpose is to "promote the best interests, protection and well being of children." One might note the glaring lack of any reference to family. In fact, there is a paucity of references to family throughout the entire CFSA even though many judges recognize the importance of maintaining family whenever possible.

I had a recent experience with CAS counsel at court when representing a family unjustly caught up in the system. Our office had prepared a very persuasive and comprehensive response to the Society's Application. We attended at the mandated five day hearing that follows apprehensions from parental care. The CAS certainly had not expected such forcefulness; normally parents are so overwhelmed at this early stage that they are unable to mount an effective defence. Generally, the court will rubber stamp the CAS requests. We did not agree to just stand idly by at the first appearance and CAS counsel was surprised by our aggressive (yet fair) approach.

Our written material seemed to have persuaded the judge. He instructed the lawyers to prepare a consent endorsement along the lines that we were seeking (which of course included an immediate return of the children to parental care). As we were returning to the courtroom after preparing the consent, the experienced and respected CAS counsel turned to me and my clients and remarked: "This is the third time your lawyer has beaten me."

The CAS counsel's comment was made innocently enough and indeed was intended to be complimentary. But still I was shocked (but probably should not have been). Why was I so shocked? -

The three times I had opposed this particular lawyer included one that took place over five years ago; I was only a summer student* assisting a lawyer in a child welfare proceeding. I couldn't believe this lawyer remembered that first of the three times she and I had been on a case together, particularly given that I wasn't even lead counsel at the time. This reminded me that many parents and their lawyers are not challenging the CAS at the first return date, particularly where there has been an apprehension. That is why this counsel recalled me so well. I suggest, that as parents' counsel, we have an obligation to mount as an aggressive and fulsome a defence as possible to the Society's Application at the first appearance which takes place five days after the children have been apprehended.

Further, the lawyer's comment concerned me because it seemed that she saw this as a "win or lose" situation. She highlighted to my clients that I had "beat her" three times. I don't see these situations as "win" or "lose". The removal of the child from his/her family in and of itself is a loss for the family whether or not the CAS was justified to apprehend. CAS counsel should be telling their clients that they need to find the best route to maintain the integrity of the family unit - not to split it up. CAS lawyers need to realize that working cooperatively with parents' counsel should be the proper path. (It follows that Legal Aid needs to assist parents even before an apprehension takes place.)

The recent series in the Toronto Star  has highlighted a number of issues raging in the child welfare system. Families, and in particular visible minorities, are struggling to battle child protection authorities throughout this province, and disproportionately these families are split up. The Societies seem to focus on getting children into care and then trying to fix the families that have been broken up.

Child protection agency attitudes need a paradigm shift. Families need to be maintained with supports in place as opposed to removing children and then trying to repair. When a lawyer succeeds in keeping a family together, that is a "win" for both the parents and the CAS. The CAS mindsight of seeing this as a "loss" is indeed discouraging and disconcerting.

*This blog post was written by one of the firm's former associate lawyers.


I agree fully with you. I am still battling with them. As the lies get greater and greater i still stand firm on my innocence. The problem with my case is the lawyer. I will stand firm and will not fall. It is all what is best for the child.. NOT the CAS!

Thank you, Gillian, for this article and for your efforts in keeping children with their parents (or at least within their extended family) when the evidence warrants it. As a social worker, parent, and grandparent, I agree with your distaste for the win/lose dichotomy approach. Any talk of "winning" should be limited to whether or not the CHILDREN involved are winning or losing through any decision by CAS or the courts. An extremely relevant factor that needs to be considered when moving children around, for any reason, is the understanding we now have about Attachment, and its effect on the mental health of children (who eventually become adults). CAS in Ontario are now supposed to be taking Attachment into consideration, after a sad history of harming many children by too often ignoring this basic human need. I have seen little evidence of CAS changing tactics. They still seem to think they can move children like pieces on a chess board, and that because it is THEIR idea, it will not harm the child. More effort should be made BEFORE moving a child to protect its right to reside with family and maintain family bonds. Keep up the good work.

I'm looking for a lawyer to assist with a child protection matter with an application to the superior court for an extraordinary remedy pursuant to commonly and the charter.
In a nut shell, the grounds being;
1) the court ignored and neglected to respect the parents rights to participate meaningfully in the proceedings violating commonly and section 7 and 15 of the charter
2) the court denied the parents right to counsel and proceeded to make a finding that the child(Ren) were in need of protection violating commonlaw and section 7
3) the society failed to provide the parents notice of the post apprehension hearing in accordance with the rules, legislation, and commonlaw, violating section 7 and 15 of the charter
4) the society has failed to meet its duties in a manner consistent with the aims of the act, the charter, and binding commonlaw

The actions of the lower court amount to a loss of jurisdiction, as it's actions contributed to a violation of guaranteed rights, which is taken as an "excess of jurisdiction" forsythe v. The queen, etc.

Although there are other points and grounds, this is not the place to cover such. I'm looking for a lawyer that is willing to put effort into this. The proceedingstand the actions of the cas support this approach, and I have a lot of experience with cas. Also, the society has repeagerly come.involved and then withdrawn. They are harassing and causing turmoil.

I assume the CAS counsel's statistics are tracked, so it's not about the child, it's about career building.

Also, too bad we have a reactive system - once CAS gets involved, the situation is already bad. The Ontario Government provides financial support for the Triple-P program, yet I didn't know of it nor how valuable it is as a parenting resource until my encounter with CAS.

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