- The grounds for finding a child in need of protection include physical harm, a risk of physical harm and a risk of emotional harm.
- A child under 16 can be taken to a place of safety under a warrant, or without one where there is a substantial risk to the child's health or safety in the time needed to get a warrant.
- A child brought to a place of safety must, within five days, go before the court, be returned, or be placed under an agreement.
Few things frighten a parent more than the idea that a Children's Aid Society could take their child. It helps to know that the law separates two questions: whether a child needs protection, and whether and how a child may be removed from the person who had charge of them.
This article explains the main legal grounds, the ways removal can happen before and after a hearing, and what the court considers. It is general information and your situation will turn on its own facts.
Two separate questions
First, there is the question of whether a child is in need of protection. A society may apply to the court to decide whether a child is in need of protection. Second, there is the question of what should happen to the child, which includes whether the child should be removed. Courts and societies treat these as different steps, and the Act directs attention to less disruptive options before removal.
Grounds for finding a child in need of protection
The grounds for finding a child in need of protection are set out in section 74(2) of the Child, Youth and Family Services Act, 2017. They include:
- Physical harm inflicted on the child, or caused by a failure to care for or protect the child, by the person who has charge of the child.
- A risk that the child is likely to suffer physical harm.
- A risk that the child is likely to suffer emotional harm.
These are examples from a longer list in the Act, so a lawyer can confirm which ground a society is relying on in your case. The parties to a child protection proceeding are the applicant, the society with jurisdiction and the child's parent, and for a First Nations, Inuk or Métis child, a representative chosen by each of the child's bands and communities is also a party. Anyone who cared for the child continuously during the six months immediately before the hearing gets the same notice as a party and may attend, have a lawyer and make submissions, though taking any further part requires the court's leave.
How a child can be removed before a hearing
Removal powers are tied to a warrant or court order, with one important exception. The main routes are below.
| Route | What the Act requires |
|---|---|
| Warrant from a justice of the peace | The justice must be 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. |
| No warrant: substantial risk | A worker who believes on reasonable and probable grounds that a child under 16 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, may bring the child to a place of safety. |
| Court order on notice | On an application made on notice to a society, the court may order the person who has charge of a child to produce the child, and if that would not adequately protect the child, may direct a worker to take the child to a place of safety. |
Once a child is brought to a place of safety, the clock starts. As soon as practicable and within five days, the child must be brought before the court for a hearing, returned to the person who last had charge, or placed under a temporary care agreement or an agreement with a 16- or 17-year-old.
What the court considers and what orders it can make
If a hearing is adjourned, the court makes a temporary care and custody order. It may return the child to the person who had charge, do so under society supervision, place the child with another consenting person under supervision, or place the child in society care. A temporary order placing the child with another person or in society care requires reasonable grounds to believe there is a risk that the child is likely to suffer harm, and that the child cannot be adequately protected by returning them to the caregiver, with or without supervision. Before placing a child in society care temporarily, the court must consider whether it is in the child's interests to place the child with a relative or a member of the child's extended family or community.
For a final order, 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. When a child is removed, the court must order access to that person unless continued contact would not be in the child's interests.
Final orders and the older terms
Older materials may still refer to society wardship or Crown wardship. The current Act uses different terms:
- Supervision order: the child is placed with a parent or another person under society supervision for at least three months and no more than 12 months.
- Interim society care: a specified period of no more than 12 months, and it can be followed by supervision, together not exceeding 12 months.
- Extended society care: the child is placed in extended society care until the order is terminated or expires, which is the current equivalent of what used to be called Crown wardship.
For First Nations, Inuk or Métis children, unless there is a substantial reason to place the child elsewhere, the court must place the child with extended family if possible, and if not, with another family from the child's community.
What to do next
- Ask the society, in writing, which ground it relies on and what plan it proposes.
- Keep every notice, court document and note of each conversation.
- Note any date on a notice, since the court process runs on a strict timetable.
- Think about relatives or community members who could care for the child and tell your lawyer about them early.
- Speak to a family lawyer as soon as a child has been removed or court papers arrive.
Frequently asked questions
Can CAS take a child without a court order?
In limited cases, yes. A worker who believes on reasonable and probable grounds that a child under 16 needs protection, and that waiting for a warrant would create a substantial risk to the child's health or safety, may bring the child to a place of safety without a warrant. In other situations, removal depends on a warrant or court order.
What happens after a child is taken to a place of safety?
Within five days, the child must be brought before the court, returned to the person who last had charge, or placed under a temporary care agreement or an agreement with a 16- or 17-year-old.
Does the court have to consider relatives before putting a child in society care?
Yes. Before placing a child in society care on a temporary basis, the court must consider whether it is in the child's interests to place the child with a relative or a member of the extended family or community. Before ordering removal in a final order, it must consider a supervision order placement with a relative, neighbour or other community member, with consent.
Will I still see my child if they are removed?
The court must order access to the person who had charge of the child unless it is satisfied that continued contact would not be in the child's interests.
Sources
- Child, Youth and Family Services Act, 2017 (e-Laws) — Ontario e-Laws
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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