Children's Aid Involvement in Ontario Custody Disputes

A call or visit from Children's Aid during a separation can be frightening. Many parents worry that it means they will lose time with their child, or that it will decide the family court case. The reality is usually more complicated.

This article explains in plain terms how safety concerns fit into an Ontario parenting dispute, what the family court generally looks at, and what practical steps help. It does not set out the child protection process itself. How a Children's Aid file proceeds depends on the facts, so a lawyer should confirm where you stand.

Two systems that can overlap

Family court deals with disputes between parents about decision-making responsibility and parenting time. Child protection is a separate system focused on whether a child is safe. The two can run at the same time, and what happens in one can matter to the other.

Under the federal Divorce Act, decision-making responsibility means making significant decisions about a child's well-being, including 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 old words custody and access are no longer used in the Divorce Act. Ordinary conversation and some agencies may still say custody, so do not be thrown by the language.

What the family court looks at

When making a parenting order, the court considers only the child's best interests. It must give primary consideration to the child's physical, emotional and psychological safety, security and well-being.

The best-interests factors include the child's needs and stability, the history of care, each parent's willingness to support the child's relationship with the other parent, the child's views and preferences, each person's ability and willingness to care for the child and to communicate and cooperate, any family violence, and any relevant civil or criminal proceedings. A Children's Aid concern may overlap with several of these.

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. Parents who are not married or not divorcing cannot get a Divorce Act order and need a parenting order under Ontario's Children's Law Reform Act instead.

How safety concerns can shape an order

If safety is a real issue, a court has tools short of cutting off contact. A parenting order can require that parenting time, or the handover of the child, be supervised. It can also impose terms, conditions or restrictions the court considers appropriate.

• A court may refuse parenting time where there is a fear that a parent may harm the children, harm the parent with decision-making responsibility, or not return the children.
• Supervision can be arranged where there are safety concerns, by a friend or relative both parents agree on, a paid professional, or trained staff at a Supervised Access Centre.
• Ontario's Supervised Access Program offers visits and exchanges under trained staff and volunteers, with on-site and virtual options.
• Where a parent is dealing with mental health or substance use issues, Justice Canada's checklist suggests considering alternative arrangements, including supervised parenting time.

Supervised Access Centre availability and waitlists vary by region, so ask locally.

Hearing from the child and urgent situations

The court gives a child's views and preferences due weight according to the child's age and maturity, unless those views cannot be ascertained. A judge can order the Office of the Children's Lawyer to provide a voice of the child report summarizing the child's statements, typically for children over seven. That report is due within 30 days after a clinician is assigned, while a full Children's Lawyer Report takes about 90 to 120 days.

In most cases a party must attend a case conference before bringing a motion for a temporary order, but that does not apply in cases of urgency, such as where your or your child's safety is at immediate risk, or hardship. A judge may still order costs against a party who brought an unnecessary motion before a conference. Motions without notice are allowed only in very limited or emergency situations, and the case must return to court within 14 days.

What to do next

• Stay calm and polite with Children's Aid workers, and write down who contacted you, when and what was said.
• Follow any existing parenting order; a person subject to one must comply until it is no longer in effect.
• Keep the child out of the conflict; parties must protect the child from conflict arising from the proceeding to the best of their ability.
• Gather records of the child's routine, health care and school involvement.
• Speak with a family lawyer early, because the answer depends on your facts and on what Children's Aid has asked of you.

If an order is not followed without good reason, the court can take action, including a fine or jail. Getting advice before you act helps you avoid steps that could harm your position.

Frequently asked questions