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This webinar is brought to you by CLEONet

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CLEONet is a web site of legal information for community workers and advocates

who work with low-income and disadvantaged communities in Ontario.

About our presenter…

Long-time educator, activist and lawyer, Zahra Dhanani is the Legal Director for the Metropolitan Action Committee on Violence Against Women and Children (METRAC), an agency that ensures access to justice for women, youth and children facing the threat of violence.

"Safer for Women, Safer for Everyone"

Child Custody and Protection

Presented by: Zahra Dhanani

Legal Director, METRACOctober 26, 2010


Who we are

METRAC The Metropolitan Action Committee

on Violence Against Women and Children

www.metrac.orgOntario Women’s Justice Network

www.owjn.org


Today’s Objective

we are here to provide accessible, general information about the law regarding child custody and protection issues

we can answer general questions about the law, but we CANNOT provide legal advice

if you require legal advice, you must contact a lawyer

Today’s Objective

there is NO right or wrong response!this presentation is not intended to

encourage you to make a particular decision

KEY: access to information to make well-informed decisions


Overview


Introduction

women with abusive partners face many challenges

a decision to leave an abusive partner may be influenced by concerns about their children, and custody and access issues


Introduction

children who have been exposed to domestic violence are seen as potentially at risk of harm

child protection authorities can intervene in families


Introduction

women from marginalized communities face even more challenges and barriers when they experience violence

cultural or religious pressures may influence a woman’s decision to stay in an abusive relationship


Child Custody

What is it?responsibilitydecision-making


Child Custody

Types of custodySole custody: One parent has all the

child care and decision-making responsibility. Joint custody: Both parents have the

child care and decision-making responsibility.


Child Access

What is it?

A Parent who does not have custody may be

allowed regular visits with their children at

scheduled times.


Interim Custody and Access

if both parents agree on a short-term arrangement, their lawyers can prepare an agreement.

they will both sign and date it. do not agree to an agreement that

you think is unfair!


Interim Custody and Access

if the parents cannot agree, they can go to mediation

if mediation is not successful, an application is made to family court and a judge will decide.


The Law

In Ontario, two different laws apply to custody and access.The Divorce Act applies if the parents are seeking

a divorce, one parent is applying for custody at the same time.The Children’s Law Reform Act (CLRA) applies if the couple is not getting divorced.


The Law

Jurisdiction

Divorce Act: person applying for the divorce lived in

the province for at least a year.

CLRA: the child is “habitually resident” in Ontario

when the custody application is made.


The Law

Some exceptions: child is present in Ontario at the start of

process substantial evidence regarding the best

interests of the child in Ontario no application for custody elsewhere no other custody order in place a real and substantial connection to

Ontario appropriateness


The Law

Who can apply for custody? Both parents have an equal right to child

custody until a legal agreement or order is made.

De facto custody: a child lives with one parent with the consent of the other parent.

A court must give permission for anyone other than the parents to apply for custody or access under the Divorce Act. No permission is needed under the CLRA."Safer for Women, Safer for

Everyone"

The Law

Best interests of the child: (1) love, affection and emotional ties;(2) views and preferences of the child;(3) length of time in a stable home

environment;(4) ability and willingness to provide

guidance, education, necessities, and special needs;


The Law

Best interests of the child continued:

(5) plans for proposed care and upbringing;

(6) permanence and stability of the family; and

(7) relationship by blood or adoption between the persons applying for custody.


The Law

Changes to how Ontario courts handle child

custody cases in effect since March 1, 2010

before, a court did not consider past conduct (e.g. abuse) when giving custody unless it directly involved a parent’s ability to parent

now, judges consider record checks and Children’s Aid Society (CAS) reports


The Law

The case of Katelynn Sampson

CHANGE WAS NEEDED!


Custody Application

What is an Affidavit?a legal document that a person swears

is the truth it must be done in writing and before a

witness it is a woman’s chance to tell her story

to the court the most important part of a custody

application


Custody Application

An affidavit should answer:Who is my family?What do I want?Why should the court decide in your

favour?


Custody Application

More about Affidavitsa copy is sent to the child’s father or

his lawyer a parent has the chance to reply in

their affidavits to anything the other parent says that is untrue

affidavits may be prepared by others if they have relevant information


Leaving an abusive relationship with the child

To protect yourself legally:

begin the custody proceedings immediately

document any violence you experience

Tell your lawyer and/or the court that she took your child for safety reasons


Leaving an abusive relationship with the child

To protect yourself legally continued:

communication• children are safe• ex-partner has a way of

communicating with them document your actions


Leaving an abusive relationship without the child

What you can dokeep in frequent contact with your childbegin custody proceedings as soon as

possibledo everything you can to ensure that

your child is safe, understands what is happening, knows that you love her/him, and knows how to contact you or someone else they trust


Remember

It is very important that women never forget their own safety!


Child Access

Denying Access

women sometimes want or need to deny the father access to their children

for example: the children do not want to visit the father; they repeatedly return from access visits extremely upset; the father is not paying his child support


Child Access

Denying access continued:

the custodial parent must support and encourage access by the non-custodial parent even if it is inconvenient or the children do not want to go

if the mother is repeatedly unhappy about the visits, she can talk to her lawyer about returning to court to vary the access order.


Child Access

Denying child access continued:

if a mother believes that the children will be harmed during a visit, she can refuse the visit

whenever a custodial parent denies access, she should immediately tell her lawyer.

she should also document any access issues.


Child Access

When the children do not want to visit with their

if the children are consistently agitated about visitation with their father, she may want to consider having them speak with a counsellor or therapist

if a counsellor or therapist learn about safety issues concerning the child, they can support a legal proceeding to limit the father’s access


Child Access

When he does not exercise his access

the mother should document all details if he wants to withdraw from access

for a specified time period, confirm it with him formally

keep in touch with your lawyer if you wants to return to court to vary the access order


Questions

About child custody and access?


Child Protection

What is it?The Ontario government has authority

to become involved with families if children are

being harmed as a result of abuse or neglect by their

parents.


The Law

The Child and Family Services Act (CFSA)

sets out what makes a child “in need of protection,” the types of abuse and neglect, and the procedures to be followed

it is not criminal legislation it cannot be used to punish a parent.


The Law

Parents must treat their children in a certain

way. They must not:be abusive towards their child,neglect their child, orallow others to mistreat, abuse or

neglect their child.


The Law

Guidelines to help identify abuse and neglect:

sexual contact physical punishmentthreats, intimidation or unreasonable

control"Safer for Women, Safer for Everyone"

The Law

Guidelines to help identify abuse and neglect

continued:no adequate, safe housingno medical attention when requiredno appropriate supervision


The Law

children who witness their mothers being abused are not considered to be potentially

at risk of harmauthorities can become involved if they

do not believe a mother has taken steps ensure a child’s safety


The Law

Who reports child abuse or neglect?everyone has a legal duty to report

abuse or neglect to the CAScertain professionals can be charged

with an offence and punished if they fail to report (e.g. doctors, nurses, social workers, teachers, shelter workers, etc.)


Children’s Aid Society

What is the Children’s Aid Society (CAS)?

a child protection agency given authority by the Ontario government

it can remove children from their families in certain situations

it must use the least intrusive measures possible



When does the CAS become involved?

when a child has been or is likely to be neglected or abused

CAS social workers are specially trained to work with these situations

CAS lawyers help to prepare all court documents and speak for the agency in any court appearance



The Process

they receive a referral they investigate and assess safety and

risk if protection is needed, a voluntary

arrangement is sought if parent/s do not consent to the

arrangement, the CAS will seek a court order



Two kinds of involvement

Voluntary involvement: the parent/s consent to

the involvement of the CAS.Involuntary involvement: the parents

do not consent, so the CAS goes to court to get

an order."Safer for Women, Safer for Everyone"


Involuntary involvement continued:

the CAS goes to Family Court to request that the judge declare the child is in need of protection

this must happen within 5 dayssubmissions are made to the judge if your child is removed from your home

without consent, obtain legal advice



If an ex-partner is mistreating the children

during access visits:the CAS can help you if you report the abuse, they will

conduct an investigation if they find abuse, they will take steps

to protect your children"Safer for Women, Safer for Everyone"


Crown Wardship

children under 6 years old who have been in the care of the CAS for a total of 12 months can become Crown Wards and be placed for adoption

this is done in the “best interests of the child”


Parental Rights

Parents have the rights to:be notified of all court proceedingsmake submissions to the judgebe represented by a lawyerget legal aid if they are eligible


Parental Rights

Continued:take part in the decisions affecting

their child information the CAS has about their

familyprivate visitation with their child

unless a court decides otherwise



Making a complaint against the CAS

talk to your CAS worker talk to your CAS worker’s supervisormake a formal complaint to The

Child and Family Services Review Board (CFSRB)



Making a complaint against the CAS

ask for a complaint form from the CASthe form is called “Request for Review

of Children’s Aid Society” if CFSRB reviews the complaint, it will

take up to 20 days to get a hearing


Questions

About child protection and the Children’s Aid

Society?


Conclusion

keep a copy of everything related to any legal proceedings and CAS involvement

obtain a copy of everything a lawyer has on a file about your legal proceeding

obtain a copy of any report written about you or your family


Conclusion

keep any certificates showing completion of a course or program that is required by CAS

keep documentation about any contact you might have with an abusive partner or former partner

make sure you write down the date on these documents


Conclusion

Most importantly:

think about your safety and know...YOU ARE NOT ALONE!


Resources

For women who experience violence Assaulted Women's Help Line: 1 866 863-

0511 Victim Support Line toll-free: 1-888-579-2888 Ontario Network of Sexual Assault/Domestic

Violence Treatment Centres: 416-323-6400 Femaide (Francophone crisis line): 1-877-336-

2433


Resources

For women who experience violence continued

Ontario Victim Services Secretariat: www.attorneygeneral.jus.gov.on.ca/english/ovss

Shelternet: www.shelternet.ca


Resources

Family lawLegal Aid Ontario:

www.legalaid.on.caFamily Law Offices:• in Ottawa: 613-569-7448• in Thunder Bay: 807-346-2950• in Toronto: 416-348-0001


Resources

Family law continuedFamily Law Information Centres

(FLIC):www.attorneygeneral.jus.gov.on.ca/

english/family/infoctr.aspLSUC Lawyer Referral Service: 1-800-

268-8326"Safer for Women, Safer for Everyone"

Resources

Other The Child and Family Services Review

Board:www.cfsrb.ca Family Law Rules Forms:http://www.ontariocourtforms.on.ca/

english/family/family


Resources

Other continuedOntario Association of Children’s

Aid Societies:www.oacas.org


Contact and Referral

If you require general legal information or referrals,

please contact me.E-mail: [email protected] line: 416-392-3148


Questions

Any further questions or comments?


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