The Pros of Arguing a Temporary Care and Custody Motion on a First Appearance in a Children’s Aid Society Court Case
If a Children’s Aid Society / Child and Family Services Agency takes your children away, you have to act fast! This article was written for lawyers to advise them how to act when helping a client whose children were just apprehended and put into foster care.
Not many child protection clients can get themselves into a lawyer’s office within 24 hours of a children’s aid society apprehending their children. Even if they are able to retain counsel so swiftly, there are problems in gathering appropriate evidence to put before a court by the first return date especially since the Society’s materials will not have been received. There are, however, situations in which there has been some prior period of involvement by the CAS before an apprehension or the initiation of an application. For example, in cases where the Society has asked the parent or parents to agree to a temporary placement while the Society conducts its investigation, there is an opportunity to prepare anticipatory materials. In such situations, it is possible to, at a minimum, put together a reasonable “safety plan” to present to the court at the outset. Provided that interested family or community members are prepared to cooperate, and the lawyer and client have sufficient stamina, comprehensive plans that include schedules for supervision, criminal/vulnerable persons checks, reports from previously involved third party professionals and even, where the financial resources permit, home-studies, can be completed within 36 to 48 hours. Whenever possible, the best practice for helping parents is to get their case together and take on the Society’s case at the earliest opportunity – the first appearance.
If retained in time, parent’s counsel should always put together materials and prepare to argue for the return of the children or, at least, their placement with a family or community member. There is no such thing as a “first appearance” under the Child and Family Services Act. The judge has to make the least intrusive order before any adjournment, including the first, so the “best practice” for parents’ counsel, if possible, is to get material together, including affidavits and a plan of care, and to argue for the return of the child. Parents will usually have a fairly clear understanding of the concerns that led the Society to take action and so will have the ability to put together a plan to address those concerns. If the nature of the concerns is such that rebutting evidence can’t be obtained very quickly (i.e. suspicious physical injuries), the goal will be to put together a plan that addresses all of the Society’s safety concerns as if they are assumed to be true. If, on the other hand the Society has acted on the basis of information that can be swiftly and clearly proven to be baseless, the materials should be prepared with a view to dismissing the application immediately. For instance, someone has reported that the parent is mentally ill and has failed to provide adequate supervision for the child, you get reports from her psychiatrist, her community worker, the child’s day care provider and affidavits from family members indicating that she is compliant with treatment, has always followed doctor’s advice, has always made contingency plans for the child, you will want to put the Society to the test right away.
The first appearance is often an excellent opportunity to advance the parents’ case as the Society will probably not have had the opportunity to put together its best evidence and will be relying largely upon hearsay and, too often, speculation. Putting materials before the Court from the parents at the earliest opportunity is important in the sense of showing the Court that they are committed and proactive. In the majority of cases, the only version of events, and impression of the parties, that is available for the Court’s consideration is that of the Society. At the first appearance, the parents have the opportunity to give the Court a sense of who they are and to address the Society’s concerns before it can find new ones during the adjournment period while the children remain in its care with very limited access by the parents. At a minimum, active advocacy on behalf of the parents at this stage is likely to result in more than the de minimis access being offered by the Society and more stringent timelines being imposed upon the Society to investigate any safety plan being proposed. If much of the work has already been done, it is more difficult for the Society to assert that it will require 6-8 weeks to investigate a safety plan.
There are legitimate concerns about challenging the Society’s case at the first appearance. The Court often has little time available for such appearances. The judge likely has a full docket of other cases, so, may be unable to give full consideration to the matter, or even to adequately review the materials filed. In these circumstances, the general tendency of the Court is to “err on the side of caution” and rule in favour of the Society. The Court may make a “with prejudice” temporary order without having had a complete opportunity to consider the evidence and submissions. Since disclosure of the Society’s file will not have been made, the parents’ materials may be deficient in certain areas. Where there are parallel criminal 11 proceedings, there is the risk of making inconsistent or even inculpatory statements. The Society may later take the position that, since the parents insisted upon arguing the issue of temporary care and custody, having filed materials, and lost, the Society will not have to meet the same threshold of likely harm on any future occasion.
In practice, however, the Society will at all stages have difficulty maintaining an argument that, where there has already been a temporary care and custody hearing, despite that there is new evidence about the safety concerns, new family plans have come forward or problems are developing in the Society’s plan, the parents must meet some higher threshold to vary the order. It is always the Society’s onus, and public obligation, to satisfy the Court that it is pursuing the least disruptive remedy that is consistent with the child’s protection and best interests. Subsequently developing evidence that the Society’s concerns lacked substantial foundation, that its plan for the child is beneficial in effect or that there are familial or community placements that afford adequate protection for the child, will very likely be viewed as constituting a material change under 51(6)
All of these issues are covered in more detail, but still in an easy-to-understand way, in this $20 book on the Basics of Ontario Family Law. It is likely a good investment for you.