Can CAS Take Your Child Without a Warrant in Ontario?

Few things are more frightening for a parent than the thought that a children's aid society (CAS) could take a child. Many people assume a worker always needs a court paper first. In most situations the law does expect one, but there are narrow exceptions.

This article explains, in plain terms, how removal works under Ontario's Child, Youth and Family Services Act, 2017 (CYFSA), what has to happen quickly afterwards, and what rights you keep. It is general information, not advice on your own situation.

The usual route: a warrant from a justice of the peace

Under CYFSA s. 81(2), a justice of the peace may issue a warrant authorizing a child protection worker to bring a child to a place of safety. The justice must be satisfied, based on sworn information, that the child is under 16 and needs protection, and that a less restrictive option is unavailable or would not be enough.

Being found "in need of protection" has a legal meaning. The grounds include physical harm inflicted, or caused by a failure to care for or protect the child, by the person who has charge of the child, and a risk of physical or emotional harm.

When a worker can act without a warrant

There is an exception. Under s. 81(7), a worker who believes on reasonable and probable grounds that a child under 16 needs protection, and that there would be a substantial risk to the child's health or safety in the time needed to get a warrant, may bring the child to a place of safety without a warrant.

Under s. 81(10), a worker who believes on reasonable and probable grounds that a child described in s. 81(7) is on any premises may enter without a warrant, by force if necessary, and search for and remove the child. In other situations, the Act's removal powers depend on a warrant or court order.

There is also a court route. On an application made on notice to a society, the court may order the person who has charge of a child to produce the child before the court. If that would not adequately protect the child, the court may direct a worker to take the child to a place of safety.

What must happen within five days

Under CYFSA s. 88, a child brought to a place of safety must, as soon as practicable and in any event within five days, be dealt with in one of three ways.

• Brought before the court for a hearing under s. 90(1).
• Returned to the person who last had charge of the child.
• Placed under a temporary care agreement, or an agreement with a 16- or 17-year-old.

A temporary care agreement is available to a person who is temporarily unable to care adequately for a child. It cannot have a term longer than six months, and with a Director's written approval it may be extended, but the total cannot exceed 12 months. Any consent or agreement is valid only if you have capacity, are reasonably informed, have had a chance to get independent advice, and act voluntarily without coercion or undue influence.

The court timetable and temporary orders

Rule 33(1) of the Family Law Rules sets maximum times for every child protection case, measured from the start of the case.

The timetable can be lengthened only if the child's best interests require it, and the parties cannot extend it by consent. A party must serve and file its plan of care or supervision at least seven days before a conference.

The court may not adjourn a hearing for more than 30 days, unless all parties present and the person who will care for the child during the adjournment consent and the court does not know of an absent party who objects. When a hearing is adjourned, the court makes a temporary care and custody order. It may return the child to the person who had charge, do so under society supervision, place the child with another consenting person under society supervision, or place the child in society care.

Placement with another person or in society care requires reasonable grounds to believe there is a risk the child is likely to suffer harm, and that the child cannot be adequately protected by returning them to the caregiver, with or without supervision. Before placing a child in society care on a temporary basis, the court must consider whether it is in the child's best interests to place the child with a relative, or a member of the extended family or community.

Access after removal

When a child is removed from the person who had charge of them, the court must order access to that person unless it is satisfied that continued contact would not be in the child's best interests.

What to do next

• Ask the worker what paper or authority they are relying on, and write down the answer and the time.
• Do not sign an agreement until you understand it, and think about getting independent advice first, since an agreement is valid only if you had a chance to get that advice, among other conditions.
• Keep every document you are served with, including plans of care, and note the dates against the timetable.
• Ask about access and put any arrangements in writing.
• Speak with a family lawyer as early as possible, since the timelines are short.

Frequently asked questions