‘The stakes are high’ in extended care order cases

By Tony Poland, LegalMatters Staff • A Children’s Aid Society (CAS) extended care order is among the most emotionally difficult issues heard in family court, says Toronto family lawyer A. Julia P. Tremain.

Tremain, a partner with Waddell Phillips Professional Corporation, says placing a child in the custody of the CAS can be traumatizing for the entire family and also presents a challenge for a system whose main concern is the welfare of the child. 

“Very often these are extremely sad cases. The stakes are high,” she tells LegalMattersCanada.ca. “It is a challenging area of law. Everyone is trying to do what they believe is best but not everybody always sees things in the same way.”

Access was generally not granted

In the past, a child removed from the home would become a Crown ward and be placed in the permanent care of the CAS. Access was generally not granted to the birth parent if the child was being put up for adoption.

“The thinking was that if the children had any access with the parents that could make it more difficult for the child to be adopted,” Tremain explains. “Now, if a child is in the extended care of the Children’s Aid Society, openness orders are available.”

She says an openness order is more often between siblings. 

“If you end up with siblings that are adopted by two different people or one is still in the care of Children’s Aid, the order ensures that the children will be able to see each other,” Tremain says.

“Occasionally, you will see an openness order allowing the parent to see the child on a very limited basis, such as once a year or maybe twice a year.

“The parent has to apply for it, or the child can, though a judge has to be convinced it’s in the best interests of the child.”

While allowing siblings to see each other may not seem unreasonable, it is not always granted, she says.

‘Sometimes it can be tricky to negotiate an order’

“Sometimes it can be tricky to negotiate an order. There may be justifiable reasons for the adoptive parents to object to a child having access to their birth family,” Tremain says. “There could have been a history of abuse or it might be disruptive to the adoptive parents in creating their new family. A judge is going to want to support the adoptive parents because they are the ones who are going to be looking after the child.”

Once the child is in the extended care of the CAS, that essentially terminates the birth parents’ parental rights. However, such orders are not made lightly and need court approval, Tremain says. 

“The first step is to establish that the child is in need of protection,” she says. “There can be a variety of reasons for that, such as the risk of neglect, or physical, psychological or sexual abuse.”

Even if CAS intervention is ordered, it doesn’t necessarily mean the child will be permanently removed from the home, says Tremain.

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“The court will decide on the best course of action,” she says. “For example, the child can be returned to the home under a six-month supervision order to see if the parents can rectify whatever led to the order. 

“Other times the child is temporarily placed in the care of CAS on an interim Society care order.  That, again, gives the parents an opportunity to try to work on their issue. An extended care order would rarely get made right away,” Tremain adds. “Usually, that happens after a period of time after the parents have had the opportunity to resolve the issues that caused the child to be taken into care.”

The thought of the CAS knocking on the door can be traumatizing, she says, and many parents can be resentful.

“It’s rare that parents see the Children’s Aid Society in a positive light for obvious reasons, so there can be a great deal of distrust,” Tremain says. “It can be difficult for parents to figure out how to behave,” she says.  “People don’t like the thought of a Children’s Aid worker walking into their home and judging them on their parenting skills.

“But it’s important to remember they are there to protect children and they can provide help if the family needs some support,” Tremain adds.

Not all parenting styles are the same

She says not all parenting styles are the same and life experiences and cultural differences often come into play.

“You have many social workers who are new to this field. They are relatively young. They may not have children themselves,” says Tremain. “It can be difficult for people to set aside their own biases about how people should parent.”

Parents being investigated by the CAS, should remain calm, she advises.

“They should try and cooperate as best they can and not get angry and defensive, which is generally the first and most natural feeling they would have,” Tremain says. “They should ask the worker questions about why they’re there, what they need and what they are looking for.”

Being antagonistic and uncooperative can have an obvious detrimental effect, she says.

“What parents have to remember is that CAS staff take notes about everything,” Tremain says. “If the parent is described as being angry, defensive, and aggressive, then the next worker may expect the same. 

“If the parent is even vaguely hostile, it may be magnified and a parent can get a reputation of being difficult.”

CAS has a duty to investigate

She says parents must understand the CAS has a duty to act once a complaint has been filed.

“Many times, they investigate and nothing comes of it,” Tremain says. “They close their file and that’s the end. There are also instances where the society investigates and will offer help to the family voluntarily. If the family agrees to speak to the worker and takes some steps such as counselling, they may not find themselves in court.”

It is only when the CAS believes that voluntary work with the family will not be sufficient to protect the child that they will bring the matter before a court and seek an order that the child is in need of protection, she says.

Tremain says parents should seek legal advice as soon as they possibly can if they are served with a court application. It is also a good idea for those who are asked to sign a voluntary agreement.

“Parents should at least know what the agreement means,” she says. “You could be signing away a pretty broad consent without knowing it.”

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