Will CAS Take Your Child Because of Mental Health Issues in Ontario?

If you live with a mental health condition, the fear that a children's aid society (CAS) could take your child can be overwhelming. That fear can even keep people from asking for help. It is worth knowing what the law actually asks, because it is narrower than many parents assume.

This article explains how Ontario's Child, Youth and Family Services Act, 2017 (CYFSA) treats parental mental health, what a court must consider before removing a child, and how a realistic plan can be part of your response. It is general information, not advice on your own case.

The legal test is about the child, not your diagnosis

A diagnosis is not, by itself, a legal reason to find a child in need of protection. The CYFSA focuses on harm or risk to the child, not on a parent's diagnosis. A society and a court look at what is happening for your child and whether the child has been harmed or is likely to be.

The grounds that can apply include physical harm or a risk of it caused by a failure to adequately care for, provide for, supervise or protect the child, or by a pattern of neglect. They also include serious anxiety, depression, withdrawal, aggressive or self-destructive behaviour, or delayed development caused by a parent's actions, failure to act or pattern of neglect, or a risk of that kind of harm.

There is also a ground tied to the child's own needs. A child may be in need of protection if the child has a mental, emotional or developmental condition that could seriously impair development and the parent does not provide, refuses or is unable to consent to treatment.

Removal is meant to be a last step

The paramount purpose of the CYFSA is the best interests, protection and well-being of children. Its other purposes include using the least disruptive appropriate course of action, such as prevention, early intervention and community support services, and supporting the autonomy and integrity of the family unit.

That purpose shows up in the court's decision-making. Before choosing an order, the court must ask what efforts the society or others have made to assist the child. It cannot remove a child from the person who had charge of the child unless less disruptive alternatives, including non-residential services and that assistance, would be inadequate to protect the child.

A justice of the peace can issue a warrant to bring a child under 16 to a place of safety if there are reasonable and probable grounds that the child is in need of protection and no less restrictive course of action is adequate. A worker can act without a warrant if there would be a substantial risk to the child's health or safety while a warrant is obtained. Within five days, the matter must go before a court, the child must be returned, or an agreement such as a temporary care agreement must be made.

Showing a safe plan

Because the question is risk, a concrete plan speaks directly to the issue. A plan does not need to deny your condition. It needs to show how your child's needs are met day to day, including on your hardest days. Ideas that parents often put in a plan include:

• Your treatment or support arrangements, described in your own words and, where you are comfortable, confirmed by your treating professionals.
• Who steps in if you are unwell, such as a relative or trusted friend who agrees to help with care.
• Routines for school, meals, medication management and supervision.
• Community supports, such as counselling or family services, that you have accepted or asked for.
• Warning signs you and your supports will watch for, and what you will do when you see them.

Courts can attach reasonable terms and conditions to a temporary order or a supervision order, and those terms can apply to the parent, the caregiver, the child and others. A strong plan may help show that a child can stay home with supports instead of being removed.

Family and community placements

If your child cannot safely stay with you, the court must consider placing the child with a relative, neighbour, or other member of the child's community or extended family, under supervision and with that person's consent, before placing the child in society care. A relative includes a grandparent, great-uncle, great-aunt, uncle or aunt, including through a spousal relationship or adoption. A family friend can qualify as a member of the child's community if the person has a beneficial and meaningful relationship with the child or a family member.

The society must check that the caregiver can provide a safe home. That includes interviewing the caregiver, meeting the child privately, assessing the home, identifying every adult living there and reviewing records. For a First Nations, Inuk or Métis child, the court must place the child with extended family if possible, or otherwise with a family of the same Indigenous group, unless there is a substantial reason to place the child elsewhere.

What to do next

If a society has contacted you, take it seriously but calmly. A parent should get advice from a lawyer before signing a Statement of Agreed Facts (Form 33C) in a child protection case. If a status review is served, a parent must file and serve Form 33B.1 (Answer and plan of care) within 30 days of receiving it.

• Write down every contact with the society, with dates and names.
• Keep copies of anything you sign or receive, and read it before agreeing.
• Gather proof of your supports, such as appointment confirmations or letters you choose to share.
• List relatives or friends who could help, and ask whether they would be willing.
• Speak with a family lawyer before signing any agreement or consenting to a court order.
• If you disagree with a society decision, you can make a written complaint, ask the Child and Family Services Review Board to review it, or complain to the Ontario Ombudsman.

Frequently asked questions