- The CAS must prove its claims on the balance of probabilities.
- The Society must prove both that the child is in need of protection and that the order it seeks serves the child's best interests.
- If the child is not found in need of protection, the case ends and the child returns to the person who had care before.
- Before deciding protection, the judge first determines basic facts such as the child's name and age and any First Nations, Métis or Inuit connections.
If a children's aid society (CAS) has taken your family to court, one question sits at the centre of the case: is the child in need of protection? The judge answers it only after hearing evidence, and the law puts the job of proving it on the society.
This article explains the legal test in plain language: who has to prove what, how strong the proof must be, what the judge decides first and what can happen next. It is general information, and a lawyer can explain how the test applies to your facts.
Who has to prove what
At a protection hearing, the CAS must prove its claims on the balance of probabilities. That means the society carries the burden. How you can respond to the society's case depends on your situation, so it is worth confirming with a lawyer.
The Society must prove two things: that the child is in need of protection, and that the order it seeks serves the child's best interests. Both parts matter. A finding that a child needs protection does not automatically mean the court will grant the exact order the society asks for.
What "balance of probabilities" means
In plain words, the judge asks whether it is more likely than not that the society's claims are true. How that plays out in a particular case depends on the facts, so it is worth confirming with a lawyer.
The standard applies to the society's claims, so the quality of the evidence is important. Evidence at a temporary care and custody hearing is given by Form 14A affidavit, sworn or affirmed true. Later steps include conferences, motions and, if the matter is not resolved, a trial.
The grounds and what the judge decides first
Which grounds the society relies on depends on what it actually alleges in its application. Ask your lawyer to identify the specific grounds in the application and explain what evidence would be needed for each.
Before deciding protection, the judge first determines the child's name and age, any First Nations, Métis or Inuit bands and communities, and where the child was removed from.
If the child is not in need of protection, the case ends and the child returns to the person who had care before.
What can follow a finding
If the court finds the child in need of protection, it then decides what order serves the child's best interests. The possible outcomes vary. Two terms you may hear are listed below.
| Term | What it means |
|---|---|
| Interim society care | The temporary society wardship order, up to 12 months per order. It usually lasts three to twelve months, and the judge decides who has care and custody and the parent's access. |
| Extended society care | The Act's term for Crown wardship. It lasts until it is terminated under s. 116 or expires under s. 123. The OCJ describes it as lasting until a judge changes the order, the child is adopted, or the child turns 18. |
Where an adoption is planned, a person has 30 days after receiving the society's notice of intention to place a child for adoption to apply for an openness order, or the right to apply is lost. For First Nations, Inuk or Métis children, the court must consider whether the order helps the child maintain connection to culture, heritage and community. Because of such short deadlines, get advice as soon as any notice arrives.
What to do next
- Ask your lawyer which grounds the society is relying on and what evidence supports them.
- Gather records that speak to the society's concerns, such as program attendance, medical or school records and letters of support.
- Write down names of people who could give evidence about your parenting.
- Attend every date; a missed hearing may proceed without you.
- Do not share court documents or post about the case online.
- If you are unsure how to get started, talk to Legal Aid Ontario's advice and duty counsel at the courthouse for the first court date.
Frequently asked questions
Who has to prove a child needs protection?
The CAS does. It must prove its claims on the balance of probabilities. It must prove the child is in need of protection and that the order it seeks serves the child's best interests.
What does balance of probabilities mean?
It means the judge decides whether the society's claims are more likely true than not. It is the standard the CAS must meet at a protection hearing. A lawyer can explain how it applies to the evidence in your case.
What happens if the judge finds the child is not in need of protection?
The case ends, and the child returns to the person who had care before.
Are protection hearings public?
No. They are closed to the public, although select media representatives may attend unless a judge excludes them. Publishing identifying information about a child, parent, foster parent or family member is prohibited.
Sources
- Ontario Court of Justice – Child Protection: Going to Court — ontariocourts.ca
- Ontario Court of Justice – Child Protection — ontariocourts.ca
- Ontario Court of Justice – Child Protection Law Trial — ontariocourts.ca
- Ontario Court of Justice – Child Protection Case — ontariocourts.ca
- Ontario Court Forms – Form 8D.3 Notice of Intention to Place First Nations, Inuk or Métis Child for Adoption — ontariocourtforms.on.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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