Children's Aid Society Involvement and Your Custody Case in Ontario

Having the Children's Aid Society (CAS) involved while you and the other parent are separating is stressful. You may be worried that the file will decide who the children live with, or that anything you say to a worker will end up in court.

This article explains how courts generally approach parenting orders in Ontario and where a CAS file can fit in. Child protection law has its own rules, which depend on the details of your file. This article does not cover them, so a lawyer should confirm how they apply to you.

Two processes that can overlap

A parenting case between separated parents and a CAS file are not the same thing. A parenting case is about decision-making responsibility and parenting time. Under the Divorce Act, decision-making responsibility covers significant decisions about a child's health, education, culture, language, religion and spirituality, and significant extracurricular activities. Parenting time is the time a child spends in the care of a person named in a parenting order.

The words "custody" and "access" were replaced under the Divorce Act as of March 1, 2021, so you will see "decision-making responsibility" and "parenting time" in court documents. If you were never married or are not divorcing, you cannot get a Divorce Act order and need a parenting order under Ontario's Children's Law Reform Act instead. Those provincial rules largely mirror the federal ones, but it is worth confirming the details with a lawyer.

Because the two processes can run at the same time, what happens in one may come up in the other. How much it matters depends on what the CAS concerns are and what stage each matter has reached.

How a court looks at CAS concerns in a parenting case

Under the Divorce Act, the court considers only the child's best interests when making a parenting order, and it must give primary consideration to the child's physical, emotional and psychological safety, security and well-being. A CAS file is not a factor by that name. It may still be relevant through the factors the court weighs.

• The history of care for the child.
• Each person's ability and willingness to care for the child and to communicate and cooperate.
• Any family violence.
• Any relevant civil or criminal proceedings.

Past conduct, such as a mental health history or past substance use, is not considered unless it is relevant to the person's exercise of parenting time, decision-making responsibility or contact. In other words, an old concern does not automatically count against you, but a current one that affects the child's care may.

Safety measures a court can put in place

Where there are safety concerns, a parenting order does not have to be all or nothing. A court may refuse a parent parenting time if there is a fear that the parent may harm the children, harm the parent with decision-making responsibility, or not return the children. It also has other tools.

• Supervised parenting time or supervised transfers of the child.
• Supervision by a friend or relative both parents agree on, a paid professional, or trained staff at a Supervised Access Centre.
• Tailored terms, conditions or restrictions, and orders for a set period or until a specified event.

Supervised Access Centre availability, waitlists and services vary by region, so ask locally about what is realistic.

Responding as a parent

There is no single right response, but some habits help in both a CAS file and a parenting case. Courts look at your willingness to cooperate and to support the child's relationship with the other parent. Parties must also protect the child from conflict arising from the proceeding to the best of their ability.

• Follow every existing parenting order until it is no longer in effect.
• Keep a dated record of schedules, exchanges, school and medical appointments, and your communications.
• Keep the children out of adult conflict and avoid discussing the case with them.
• Gather any CAS letters, safety plans or agreements you have signed, and bring them to a lawyer.

If an order is not followed without good reason, a court can take action against the person who did not comply, including a fine or jail.

Urgent situations and changing an order

In most cases a party must attend at least one case conference before bringing a motion for a temporary order about where children will live and parenting time. That requirement does not apply in cases of urgency, such as where your or your child's safety is at immediate risk, or hardship, although a judge may order costs against someone who brought an unnecessary motion.

If you already have a final parenting order and circumstances change, the court must be satisfied there has been a change in the circumstances of the child since the order was made before it varies a Divorce Act order. Relocation of a child is deemed to be a change in circumstances, although a relocation the court has already prohibited does not count as a change by itself. If the other parent does not agree, you file Form 15: Motion to Change. If you both agree, you can use Form 15C, Consent Motion to Change, signed in front of witnesses. A court order can only be changed by a new decision from the court, even if the parents agree informally.

What to do next

Start by getting clear on where each matter stands: any CAS file, any existing order or agreement, and any court dates. Then speak with a family lawyer who can look at both together, because the best approach in one can affect the other.

• Collect your court papers, orders, separation agreement and CAS correspondence in one place.
• Write down a short timeline of key events, with dates.
• Think about what a safe, realistic schedule would look like, including holidays and school breaks.
• Consider mediation. Free family mediation is available at Ontario courthouses on the day you are in court.

Frequently asked questions