What Happens at a Child Protection Hearing After Apprehension in Ontario?

If a children's aid society has taken your child to a place of safety, the first few days move quickly. You may be told you have to go to court almost right away, and you may not know what the judge is deciding.

This article explains in general terms how that first stage works in Ontario, what the court can order while the case continues, who can take part, and what the timetable looks like. Every case turns on its own facts, so a lawyer can tell you how this applies to yours.

Why the court date comes so quickly

A justice of the peace can issue a warrant allowing a child protection worker to bring a child to a place of safety, if satisfied on sworn information that the child is under 16, needs protection, and that a less restrictive option is unavailable or would not be enough.

A worker may also bring a child under 16 to a place of safety without a warrant if the worker believes on reasonable and probable grounds that the child 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.

Once a child is brought to a place of safety, the Child, Youth and Family Services Act, 2017 (CYFSA) sets a short clock. As soon as practicable, and in any event within five days, the child must be brought before the court for a hearing, returned to the person who last had charge of the child, or placed under a temporary care agreement or an agreement with a 16- or 17-year-old.

What the court decides at this stage

The early hearing is not the final decision about your family. It deals with where the child will stay while the case moves forward. When a hearing is adjourned, the court makes a temporary care and custody order.

The court can choose among these options:

• return the child to the person who had charge before the society stepped in;
• return the child to that person under society supervision;
• place the child with another person who consents, under society supervision; or
• place the child in society care.

The court may only order the last two if there are reasonable grounds to believe the child is likely to suffer harm and 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 child's extended family or community. If you have a grandparent, aunt, uncle or family friend who could care for the child, tell your lawyer early.

Who can take part in the hearing

The parties to a child protection proceeding are the applicant, the society with jurisdiction and the child's parent. For a First Nations, Inuk or Métis child, a representative chosen by each of the child's bands and communities is also a party.

• Caregivers: anyone who cared for the child continuously, including a foster parent, during the six months immediately before the hearing gets the same notice as a party and may attend, have a lawyer and make submissions, but taking any further part needs the court's leave.
• Children 12 or older: the child is entitled to notice and to attend, unless the court is satisfied that being present would cause the child emotional harm.
• The public: hearings are held without the public present unless the court orders otherwise.

The timetable that follows

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

A party must serve and file its plan of care or supervision at least seven days before a conference, even if that is sooner than the timetable would require. A court may not adjourn a child protection 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.

The court may lengthen a time in the timetable only if the child's best interests require it, and the parties cannot lengthen it by consent.

What to do next

• Speak to a family lawyer as soon as you can, ideally before the first hearing.
• Ask the society or the court for the hearing date, time and location, and write them down.
• Think about relatives or community members who could care for your child and who would consent.
• Gather your documents and any information about your child's needs, schooling and routines.
• Start preparing your plan for your child's care so it can be filed on time.

Frequently asked questions