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.