What to do when the Children’s Aid Society Calls
This is the Ontario Family Law podcast, featuring issues related to marriage, separation, divorce and, today, some child welfare issues. It is a companion to the book A Guide to the Basics of Ontario Family Law, which is available as a paperback or ebook at Amazon, Kobo or the Apple iBookstore. My name is John Schuman. I am a certified specialist in family law and I am a family litigation lawyer, mediator, arbitrator and collaborative lawyer and I am the partner leading the family law group at Devry Smith Frank LLP. Today on the podcast, we are going to discuss what to do if the Children’s Aid Society is investigating you.
Under Ontario law, Children’s Aid Society has a lot of powers. Amongst lawyers and judges, Crown wardship hearings are often called the capital murder cases of family law because they could result in an order that permanently take children away from their parents, essentially killing that relationship. For many parents, never being able to see their children again is a fate worse than death. However, that can be the unfortunate consequence for parents if they cannot convince the Children’s Aid Society and the Court that the children are safe in the parent’s care.
For that reason, it is important to get off on the right foot with the Children’s Aid Society, from the first time you speak with the child protection worker. The general thinking is that people who abuse children are not nice people. So if you are not nice to the child protection worker then you give the impression that you are the type of person who does abuse children, and that can only create problems for you down the road. On the other hand, if you come across as a pleasant person, or someone that the child protection worker can work with to fix the alleged problem, then the Children’s Aid Society may either believe that you are not capable of doing the things that are alleged, or may believe that only minimal intervention is necessary to protect your children. That will minimize your involvement with the Children’s Aid Society.
However, with that said, it also does not help you to let the Children’s Aid Society do whatever it wants and walk all over you, perhaps even finding new problems where they had no justifiable reason to look. It is extremely important that you speak to a lawyer who practices child protection law as soon as you hear that a Children’s Aid Society has any interest in you. Not only do those lawyers know the rule that Children’s Aid Society has to follow, so you don’t look like an idiot complaining about something that is a standard procedure, but the lawyer can play the “bad guy” who keeps the Children’s Aid Society in line at a time when it is crucial that you come across as the “good guy”.
Getting a lawyer also send a message to the Children’s Aid Society that you are in control of your life as you have the mental stability, and intelligence to manage to hire a lawyer, and perhaps other professionals, to help you. That gives the child protection worker a positive impression because many other people he or she sees are unable to manage their life, which often explains how the allegations came about, and suggests that it is difficult for the Children’s Aid Society to fix the problem.
Unfortunately, if your family has very minimal income such that you qualify for a legal aid, hiring a lawyer, especially quickly, can be tricky. You must simultaneously meet with legal aid to try to get a certificate while legal services on an expedited basis, while finding a good lawyer will take legal aid.
What to do When the Children’s Aid Society Calls
When I mentioned that knowing the rule is important so that you don’t do or say something that makes you look like an idiot, one of the most common mistakes that parents make is believing that the Children’s Aid Society is not allowed to speak to your children without your consent. The Child and Family Services Act in Ontario gives child protection workers lots of powers when conducting an investigation. It does not explicitly give child protection workers the right to speak to children without their parents consent. However, it does give them the power to take all the steps necessary to properly conduct their investigation. The Ministry of Child and Youth Services has produced standards that Children’s Aid Society’s child protection worker have to follow when conducting a child abuse or child neglect investigations. Those standards include the requirement that the Children’s Aid Society worker speak with children, often without their parent’s knowledge. The Ontario Family Court has held that since speaking to children is required by those standards, it is implicitly something that the Child and Family Services Act permits. If you try to block the Children’s Aid Society from speaking to your children the Children’s Aid Society will conclude that you are afraid of what the children will say and also conclude that if the agency did speak to the children the children would say you have done a horrible thing to them. It is best not to interfere with the interviews of your children.
Keep in mind that child protection workers, unfortunately, rarely follow the best practices for interviewing children about abuse. They rarely if ever audio or video tape the interviews, which is not only part of those practices, but also ensures that proper interview techniques are used. The police almost always video tape their interviews of children to ensure that the Crown can use the interviews at trial. When the child protection worker fails to use the best practices when interviewing your children, that may enable your lawyer to limit the impact of whatever the children said, or are reported to have said, during an interview, or perhaps prevent that interview from ever becoming evidenced before the court. Still, you should allow that interview to take place.
Because the serious impact that child protection proceedings in court can have on the children, kids are allowed to have a lawyer with them during that interview but the request for the lawyer must come from the child and the lawyer must not be someone imposed on the child by parents.
Parents are also allowed to have a lawyer present with them when they speak to the child protection worker. In fact, if you believe that the Children’s Aid Society could be investigating allegation that you physically abused your child, used improper punishment against your child, sexually abused a child, failed to provide the necessaries of life to a child, assaulted another person in front of a child, or committed any other potentially criminal act, it is critically important that you have a lawyer with you during the interview. This is because the Children’s Aid Society will write down everything you say to them and share what you said to the child protection worker with the police.
You have the right to remain silent when being questioned about the potential criminal activity and every criminal lawyer will tell you that it is critically important that you do not give a statement until you have spoken to a criminal lawyer and received disclosure from the Crown.
Just not speaking to the child protection worker is not really an option. The worker needs to speak to you to find out what kind of person you are and hear your side of the story. In addition, if you refuse to speak to the Children’s Aid Society at all, the child protection worker will likely think that you are being uncooperative and it will not be possible for the Children’s Aid Society to work with you to protect the children in your care. The result of that could be that they take the children away. Balancing the right to remain silent with the need to be cooperative with the Children’s Aid Society could be extremely tricky. You need the professional advice of an experienced child protection lawyer to keep you from falling into deep trouble on one side or the other.
What to do When the Children’s Aid Society Calls
You can often judge the seriousness of the situation by how quickly the Children’s Aid Society calls or shows up after the alleged events or they receive the report about it. More serious the allegation, the more quickly Children’s Aid Society has to respond. In the most serious cases, the Children’s Aid Society will just come and apprehend the children and do the investigations afterwards because the report the agency receives suggest that the children are in risk of immediate serious harm. If the Children’s Aid Society takes longer, even up to a week, to being want to report, then chances are the agency believes that they concern may be less serious, but that does not mean you should take the matter less seriously. Sometimes accumulation of little things can cause the Children’s Aid Society to decide to apprehend children.
When you do meet with the child protection worker, it is important that you be polite and inviting to give the impression that you are a kind and caring person. It is important that your home be clean, organized and child friendly. The child protection worker will likely ask to look around because he or she needs to see that there are not cages or implements of torture for the children, because there have been cases like that. In addition, the child protection worker is required to ask questions about every kind of abuse or neglect and not just about the report that the agency received. The Children’s Aid Society does not want to focus on one concern and overlook several other, potentially more serious, but less apparent, concerns. If the investigating worker asks children about good and bad touching, or ask you about punishment, do not be immediately concerned that the Society has received information about those concerns. But, as I noted before, if there was a specific incidence that could have been a criminal act, make sure you have a lawyer with you for the interview.
It is almost always very useful to speak to a lawyer before the child protection worker speaks to you, if that is possible. The lawyer can then give you a bit of advice as to what to say, what not to say, and how best to show the Children’s Aid Society that there is no safety concerns for the children, and even if there were, you have already addressed them. It is also good to speak to a lawyer about what sort of documents you should and should not sign when meeting with a child protection worker. Generally speaking, you should not sign any sort of agreements with the Children’s Aid Society without speaking to a lawyer. Those agreements become legally binding contracts and it is always appropriate to get legal advice on contract to make sure you fully understand the nature and implications of what you are signing. Sometimes the consequences of the agreement can be much more serious than you anticipated. You should also speak to a lawyer about whether you should sign releases of information to allow the Children’s Aid Society to speak with the professionals involved with your children. There is often no harm in doing so, but in some specific situations giving permission to the Children’s Aid Society to speak to other people can cause problems so you should really speak to a lawyer to find out what is appropriate in your circumstance.
My last tip in this edition of the podcast is that if the Children’s Aid Society apprehends your children, or if Children’s Aid Society takes you to court, there is usually a very significant advantage to hiring a lawyer immediately and having that lawyer able to respond to the Society’s case at the first appearance. That first appearance comes very fast, especially when the children are apprehended, when it must occur within five days. Often, you will not get the Society’s court documents, or even the specifics of the Society’s concerns, or the allegations made against you, until you show up at court for that first appearance. Still, there is a lot your lawyer can do to get the ball rolling on several fronts, to determine what the concerns are, and start addressing those concerns immediately.
Finally, the longer children are in foster care, the harder it is to get them out. A good child protection lawyer will get things sorted to get the children out of care immediately after you put needful steps.
Child protection proceedings are very legally complex and technical court proceedings. It is easy to make same mistakes even with the best of intention for the children. This is nothing less than your children’s future is at stake, this is not a good time to figure out how to do it yourself. It is a time when you need the assistance of your family, community, and an excellent lawyer to ensure everything turns out okay.
This has been a child protection law episode of the Ontario Family Law Podcast. My name is John Schuman. I am a Family Law Lawyer practicing in Toronto, Ontario. You can reach me by calling 416-446-5847 or at our website, which is www.devrylaw.ca. Look on our website, or on iTunes for many other podcasts in these series. We will talk again soon about other family law and children’s rights issues.
Podcast for When The Children’s Aid Society Calls
Podcast #28 – What to do when the Children’s Aid Society Calls
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