Can CAS Apprehend a Newborn at the Hospital in Ontario?

If you have had a children's aid society file in the past and you are expecting a baby, the fear that the baby could be taken at the hospital is real. It helps to know what the law actually says about when and how a society can remove a child, and what happens afterwards.

This article explains the grounds, the warrant and no-warrant tests, the first court steps and how families can plan before the birth. It is general information, not advice on your case.

What the law says about newborns

A child is in need of protection under CYFSA s. 74(2) on listed grounds. They include physical harm or a risk of likely physical harm inflicted by the person having charge of the child, sexual abuse or exploitation (or risk), and emotional harm (or risk). The grounds are framed around the child's circumstances and the risk to the child, and the text contains no provision specific to prenatal or newborn apprehension.

In other words, a baby is assessed under the same legal grounds as any other child. How a past file affects your situation depends on the facts, so it is worth confirming with a lawyer. The Act's guiding purposes are the child's protection and well-being, and using the least disruptive course of action that is available and appropriate.

How a society can take a child to a place of safety

With a warrant, a worker may enter the premises named in it, by force if necessary, and search for and remove the child. A worker may call for a peace officer's assistance and may authorize a medical examination where a parent's consent would otherwise be required. Warrantless entry, by force if necessary, is permitted to search for and remove a child who meets the warrantless test.

Whether a particular step at a hospital met these tests is a fact-specific question. If it happens to you, a lawyer can review what was done.

What happens after a removal

When a child has been taken to a place of safety, the society must go to court within five days after starting the court case. At the first court date, the judge decides whether the child can be returned to a parent or an extended family member.

Before making a temporary order for society care and custody, the court must consider whether the child can instead be placed with a relative or a member of the child's extended family or community. A court can only remove a child if less disruptive alternatives, including non-residential care, would be inadequate. A hearing can be adjourned for no more than 30 days at a time.

If you are responding to the case, you must serve and file an Answer and Plan of Care within thirty days of receiving the society's application. The court must also obtain a written plan for the child's care from the society before making certain orders. A decision under Part V can be appealed by a parent, among others, and care decisions are stayed for 10 days after the notice of appeal is served.

The court may also order a person to undergo an assessment if it is necessary for a determination, and it may draw a reasonable inference from a refusal. The Ministry has directed societies not to use or rely on hair-strand drug and alcohol testing.

Planning before the birth

Many families can reduce the chance of a crisis by planning early. The standards direct workers to involve family, extended family and community in safety planning whenever possible and consistent with the child's safety. A safety plan must be approved by a supervisor before it is implemented and documented within five days of first face-to-face contact.

• Identify relatives or community members who could help or provide a home. Investigators are expected to identify them, and before a temporary order for society care the court must consider whether the child can be placed with them.
• Know the formal consent routes. A temporary care agreement is a written agreement under CYFSA s. 75, and the society must be satisfied no less disruptive course, such as care in the child's own home, is available.
• Before a consent order removing a child, the court must confirm the parent understands the consent and that it is voluntary.
• Do not sign anything you do not understand. Ask for time to speak with a lawyer.
• If you are unhappy with a service you sought or received, you may complain to the society.

Whether a signed safety plan is legally binding is not something to assume. Ask a lawyer to explain any document before you sign.

What to do next

• Speak to a family lawyer before the birth if you have a history with a society.
• Write down names and contact details for relatives who could care for the baby.
• Keep records of prenatal care, housing, supports and any services you are using.
• Bring a support person to meetings and ask for important terms in writing.
• If a child is taken, get legal advice immediately, as the first court date comes within five days.

Frequently asked questions