This story is stranger than fiction! A foster parent couple has held the Children's Aid Society of Hamilton, Ontario accountable for violating their constitutional right to freedom of religion. Child welfare law transitions into constitutional law. The Children's Aid Society ran roughshod over the foster parents' religious beliefs, summarily terminating their foster care of two youngsters. And it was all over the Easter Bunny! Unbelievable? You bet. True? Absolutely!
Where there is a perceived threat to the health, safety or well being of a child, the Children's Aid Society (CAS) has the legal right to apprehend a child - ie. remove the child from the care of the parent or other guardian. If you are concerned about a possible apprehension, read the guidelines for apprehension management below and immediately contact a lawyer to obtain further guidance.
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.
We have previously commented upon procedural fairness in child welfare cases and the role that summary judgment motions play: Part 1 Part 2. We have called for reforms. The growing threat to procedural fairness principles has been further exacerbated by the Supreme Court of Canada decision, Combined Air when it may be applied to child welfare cases. It has already been applied to at least one family case - Jivraj v. Jivraj.
There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal (Ontario Family Law Rules, R. 24(1)). There is, however, no such presumption for costs in a child protection case (Rule 24(2)). Does that mean that a successful parent can never obtain a costs order against a children's aid society? Let us delve a little further.