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.
Procedural Fairness is crucial for an effective judicial system. And it's not just an issue of 'fairness' to parents; rather, to protect the most vulnerable in society - children - there need to be solid safeguards in our family law system to preserve and indeed promote parental/child relationships. The use of summary judgment remedies has been particularly destructive of families in the child welfare system, as I have commented previously. In addition, I have already warned of the emerging trend to deny to litigants generally their day in court.
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.
Allegations of alcohol abuse are often advanced to restrict a parent's access to his/her children in both child custody cases and in child welfare (children's aid society) cases. There are reliable measures available to challenge such allegations.
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.
Child welfare agencies have a fairly light onus on them when it comes to analyzing whether or not they were justified in effecting an apprehension of children from their parents' care. (But at least there is some degree of onus on them.) Despite the fairly easy test that they must pass, there are still some occasions where the courts will step in and sanction a children's aid society. Cree Nation and Family Caring Agency v. L.(R.) is thankfully one of those cases.
In part 1 of this blog post, I wrote: "Justice J. deP. Wright has issued a brave appeal decision: R.(C) v. C.A.S. of the District of Thunder Bay (Jan. 30, 2013). He criticizes courts and agencies that run roughshod over the procedural rights of parents." Let's examine some different ideas to protect parents' procedural rights and how we might reform the system.
Has a "Summary Judgment" motion in an Ontario family court resulted in you losing your child to the Children's Aid? Are you now facing a summary judgment motion? The increasing frequency of using this draconian and patently unfair tool to deprive children of their parents in these sorts of child custody cases has long troubled me. It's gratifying to see that at least one Ontario Superior Court Judge seems to agree with me.