Can a Grandparent Get Custody of a Child in CAS Care in Ontario?

If your grandchild has been removed from their parent by a children's aid society (CAS), you may want to know whether you can take over their care. In Ontario, the answer can be yes, but it goes through the child protection court process and not only through the society.

This article walks through the main routes, what a judge considers, and what happens afterward. Every case turns on its facts, so treat it as a starting point and speak with a lawyer about your own situation.

The main routes for a grandparent

There are two common court outcomes that involve a grandparent. The first is a supervision order. This is a final order placing the child in the care and custody of a parent or another person under society supervision for at least three months and no more than 12 months.

The second is a custody order. Instead of a standard final order, the court may grant custody of the child to one or more persons, such as a grandparent, if that better serves the child's best interests. The person must consent.

Before the court gets that far, a society can also place a child with kin as part of its own plan. These rules apply when the society has found that the child needs protection and cannot be adequately protected with the current caregiver, and it proposes, or is told of, a plan to place the child with a relative or a member of the extended family or community. Before placing the child, the society must decide whether the person is capable of providing a safe home environment, which includes interviewing the caregiver, meeting privately with the child and assessing the home. If the child already lives with the relative when the society learns of it, the society must instead decide within seven days whether the person is providing a safe home environment, then carry out the same checks on every adult in the home.

What the judge considers

The court first asks whether the child needs protection. The grounds include physical harm, or a risk of physical or emotional harm. If a removal is being considered, the court must not order a child removed from the person who had charge unless less disruptive alternatives would be inadequate.

Before ordering removal, it must consider placing the child, with consent, with a relative, neighbour or other member of the child's community under a supervision order. The best interests factors include:

• The child's views and wishes, given due weight according to age and maturity.
• The child's physical, mental and emotional needs.
• The child's relationships with family and community, and continuity of care.
• The risk of harm from removal.

For a First Nations, Inuk or Métis child, the factors also include preserving cultural identity and community connection, and the court must place the child with extended family if possible unless there is a substantial reason to place the child elsewhere.

Timelines and temporary orders

Child protection cases move quickly. Measured from the start of the case, the maximum times include 30 days for service and filing of answers and plans of care, 35 days for the temporary care and custody hearing, 80 days for the settlement conference, and 120 days for the hearing.

The court can lengthen those times only if the child's best interests require it, and the parties cannot lengthen them by consent. A party must also serve and file its plan of care or supervision at least seven days before a conference. If you want to put forward a plan, you need to act early.

When a hearing is adjourned, the court makes a temporary order. Before placing a child in society care on a temporary basis, it must consider whether placing the child with a relative or member of the extended family or community is in the child's best interests.

After the order

Orders are not always permanent. A status review of a final order can be started by, among others, a person granted custody or the person the child was placed with under a supervision order. Where a child is removed from the person who had charge of them, the court must order access to that person unless continued contact would not be in the child's best interests.

Money is a practical concern. Temporary Care Assistance under Ontario Works may be available if the child is in the adult's temporary care and in financial need, the child is not a dependent child under Ontario Works or ODSP, the adult has no legal obligation to support the child, and the adult is not paid for caring for the child under the CYFSA. A kinship child may be eligible if the criteria are met, but a child placed under a s. 116 legal custody order is a dependent and is not eligible. Local Ontario Works offices apply the rules, so confirm the current amounts and eligibility with them.

What to do next

• Let the society worker know you are interested in caring for your grandchild, and ask a lawyer how best to put your plan forward.
• Ask for copies of any court documents and find out the next hearing date.
• Prepare a short written plan covering where the child would live, school, health care and how you would support contact with the parents.
• Gather proof of your relationship with the child and of your home and household.
• Speak with a family lawyer before filing anything, because the timelines are short and the parties cannot extend them by consent.

Frequently asked questions