Transcript Slide 1

This webinar is brought to you by
CLEONet
www.cleonet.ca
CLEONet is a web site of legal information
for community workers and advocates who
work with low-income and disadvantaged
communities in Ontario.
2010, Community Law School
(Sarnia-Lambton) Inc.
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.
Child Custody and Protection
Presented by:
Zahra Dhanani
Legal Director, METRAC
October 26, 2010
"Safer for Women, Safer for Everyone"
Who we are
METRAC
The Metropolitan Action Committee on Violence
Against Women and Children
www.metrac.org
 Ontario Women’s Justice Network
www.owjn.org

"Safer for Women, Safer for Everyone"
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
"Safer for Women, Safer for Everyone"
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 wellinformed decisions
"Safer for Women, Safer for Everyone"
Overview
(1) Introduction
(2) Child Custody and
Access
•
•
•
What is it?
Law – The Divorce Act, The Children’s
Law Reform Act
What you can do
(3) Child Protection
•
•
What is it?
Law – The Child and Family Services
Act
"Safer for Women, Safer for Everyone"
•
•
Children’s Aid Societies
What you can do
(4) Resources
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
"Safer for Women, Safer for Everyone"
Introduction


children who have been exposed to domestic
violence are seen as potentially at risk of harm
child protection authorities can intervene in
families
"Safer for Women, Safer for Everyone"
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
"Safer for Women, Safer for Everyone"
Child Custody
What is it?


responsibility
decision-making
"Safer for Women, Safer for Everyone"
Child Custody
Types of custody
Sole custody: One parent has all the child care and
decision-making responsibility.
Joint custody: Both parents have the child care and
decision-making responsibility.
"Safer for Women, Safer for Everyone"
Child Access
What is it?
A Parent who does not have custody may be
allowed regular visits with their children at
scheduled times.
"Safer for Women, Safer for Everyone"
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!
"Safer for Women, Safer for Everyone"
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.
"Safer for Women, Safer for Everyone"
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.
"Safer for Women, Safer for Everyone"
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.
"Safer for Women, Safer for Everyone"
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
"Safer for Women, Safer for Everyone"
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;
"Safer for Women, Safer for Everyone"
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.
"Safer for Women, Safer for Everyone"
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
"Safer for Women, Safer for Everyone"
The Law
The case of Katelynn Sampson
CHANGE WAS NEEDED!
"Safer for Women, Safer for Everyone"
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
"Safer for Women, Safer for Everyone"
Custody Application
An affidavit should answer:
 Who is my family?
 What do I want?
 Why should the court decide in your favour?
"Safer for Women, Safer for Everyone"
Custody Application
More about Affidavits
 a 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
"Safer for Women, Safer for Everyone"
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
"Safer for Women, Safer for Everyone"
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
"Safer for Women, Safer for Everyone"
Leaving an abusive relationship
without the child
What you can do
 keep in frequent contact with your child
 begin custody proceedings as soon as possible
 do 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
"Safer for Women, Safer for Everyone"
Remember
It is very important that women never forget
their own safety!
"Safer for Women, Safer for Everyone"
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
"Safer for Women, Safer for Everyone"
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.
"Safer for Women, Safer for Everyone"
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.

"Safer for Women, Safer for Everyone"
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

"Safer for Women, Safer for Everyone"
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
"Safer for Women, Safer for Everyone"
Questions
About child custody and access?
"Safer for Women, Safer for Everyone"
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.
"Safer for Women, Safer for Everyone"
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.
"Safer for Women, Safer for Everyone"
The Law
Parents must treat their children in a certain
way. They must not:
 be abusive towards their child,
 neglect their child, or
 allow others to mistreat, abuse or neglect their
child.
"Safer for Women, Safer for Everyone"
The Law
Guidelines to help identify abuse and neglect:
 sexual contact
 physical punishment
 threats, intimidation or unreasonable control
"Safer for Women, Safer for Everyone"
The Law
Guidelines to help identify abuse and neglect
continued:
 no adequate, safe housing
 no medical attention when required
 no appropriate supervision
"Safer for Women, Safer for Everyone"
The Law
children who witness their mothers being
abused are not considered to be potentially at risk
of harm
 authorities can become involved if they do not
believe a mother has taken steps ensure a child’s
safety

"Safer for Women, Safer for Everyone"
The Law
Who reports child abuse or neglect?
 everyone has a legal duty to report abuse or
neglect to the CAS
 certain professionals can be charged with an
offence and punished if they fail to report (e.g.
doctors, nurses, social workers, teachers, shelter
workers, etc.)
"Safer for Women, Safer for Everyone"
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
"Safer for Women, Safer for Everyone"
Children’s Aid Society
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

"Safer for Women, Safer for Everyone"
Children’s Aid Society
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
"Safer for Women, Safer for Everyone"
Children’s Aid Society
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"
Children’s Aid Society
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 days
 submissions are made to the judge
 if your child is removed from your home without
consent, obtain legal advice

"Safer for Women, Safer for Everyone"
Children’s Aid Society
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"
Children’s Aid Society
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”
"Safer for Women, Safer for Everyone"
Parental Rights
Parents have the rights to:
 be notified of all court proceedings
 make submissions to the judge
 be represented by a lawyer
 get legal aid if they are eligible
"Safer for Women, Safer for Everyone"
Parental Rights
Continued:
 take part in the decisions affecting their child
 information the CAS has about their family
 private visitation with their child unless a court
decides otherwise
"Safer for Women, Safer for Everyone"
Children’s Aid Society
Making a complaint against the CAS



talk to your CAS worker
talk to your CAS worker’s supervisor
make a formal complaint to The Child and
Family Services Review Board (CFSRB)
"Safer for Women, Safer for Everyone"
Children’s Aid Society
Making a complaint against the CAS
ask for a complaint form from the CAS
 the 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

"Safer for Women, Safer for Everyone"
Questions
About child protection and the
Children’s Aid Society?
"Safer for Women, Safer for Everyone"
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
"Safer for Women, Safer for Everyone"
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

"Safer for Women, Safer for Everyone"
Conclusion
Most importantly:
think about your safety and know...
YOU ARE NOT ALONE!
"Safer for Women, Safer for Everyone"
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
"Safer for Women, Safer for Everyone"
Resources
For women who experience violence continued
 Ontario Victim Services Secretariat:
www.attorneygeneral.jus.gov.on.ca/english/ov
ss
 Shelternet: www.shelternet.ca
"Safer for Women, Safer for Everyone"
Resources
Family law
 Legal Aid Ontario: www.legalaid.on.ca
 Family Law Offices:
• in Ottawa: 613-569-7448
• in Thunder Bay: 807-346-2950
• in Toronto: 416-348-0001
"Safer for Women, Safer for Everyone"
Resources
Family law continued
 Family Law Information Centres (FLIC):
www.attorneygeneral.jus.gov.on.ca/english/fami
ly/infoctr.asp
 LSUC 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/fami
ly/family
"Safer for Women, Safer for Everyone"
Resources
Other continued
 Ontario Association of Children’s Aid Societies:
www.oacas.org
"Safer for Women, Safer for Everyone"
Contact and Referral
If you require general legal information or referrals,
please contact me.
E-mail: [email protected]
Direct line: 416-392-3148
"Safer for Women, Safer for Everyone"
Questions
Any further questions or
comments?
"Safer for Women, Safer for Everyone"
This webinar was brought to you by
CLEONet
For more information visit the Family Law
section of CLEONet at www.cleonet.ca
For more public legal information webinars
visit:
http://www.cleonet.ca/training