Child Custody and Protection Slideshare Version

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About our presenter…
Long-time educator, activist and lawyer, Zahra Dhanani is the
Legal Director for the Metropolitan Action Committee on
Violence Against Women and Children (METRAC), an agency
that ensures access to justice for women, youth and children
facing the threat of violence.

"Safer for Women, Safer for Everyone"
Child Custody and Protection
Presented by:
Zahra Dhanani
Legal Director, METRAC
October 26, 2010

Who we are
METRAC
The Metropolitan Action Committee on Violence
Against Women and Children
www.metrac.org
Ontario Women’s Justice Network
www.owjn.org

Today’s Objective
we are here to provide accessible, general
information about the law regarding child custody
and protection issues
we can answer general questions about the law,
but we CANNOT provide legal advice
if you require legal advice, you must contact a
lawyer

Today’s Objective
there is NO right or wrong response!
this presentation is not intended to encourage you
to make a particular decision
KEY: access to information to make well-
informed decisions

Overview

Introduction
women with abusive partners face many
challenges
a decision to leave an abusive partner may be
influenced by concerns about their children, and
custody and access issues

Introduction
children who have been exposed to domestic
violence are seen as potentially at risk of harm
child protection authorities can intervene in
families

Introduction
 women from marginalized communities face even
more challenges and barriers when they experience
violence
 cultural or religious pressures may influence a
woman’s decision to stay in an abusive relationship

Child Custody
What is it?
responsibility
decision-making

Child Custody
Types of custody
Sole custody: One parent has all the child care and
decision-making responsibility.
Joint custody: Both parents have the child care and
decision-making responsibility.

Child Access
What is it?
A Parent who does not have custody may be
allowed regular visits with their children at
scheduled times.

Interim Custody and Access
 if both parents agree on a short-term arrangement,
their lawyers can prepare an agreement.
 they will both sign and date it.
 do not agree to an agreement that you think is
unfair!

Interim Custody and Access
if the parents cannot agree, they can go to
mediation
if mediation is not successful, an application is
made to family court and a judge will decide.

The Law
In Ontario, two different laws apply to custody and
access.
The Divorce Act applies if the parents are seeking a
divorce, one parent is applying for custody at the
same time.
The Children’s Law Reform Act (CLRA) applies
if the couple is not getting divorced.

The Law
Jurisdiction
Divorce Act: person applying for the divorce lived in
the province for at least a year.
CLRA: the child is “habitually resident” in Ontario
when the custody application is made.

The Law
Some exceptions:
 child is present in Ontario at the start of process
 substantial evidence regarding the best interests of
the child in Ontario
 no application for custody elsewhere
 no other custody order in place
 a real and substantial connection to Ontario
 appropriateness

The Law
Who can apply for custody?
 Both parents have an equal right to child custody until
a legal agreement or order is made.
 De facto custody: a child lives with one parent with
the consent of the other parent.
 A court must give permission for anyone other than
the parents to apply for custody or access under the
Divorce Act. No permission is needed under the CLRA.

The Law
Best interests of the child:
(1) love, affection and emotional ties;
(2) views and preferences of the child;
(3) length of time in a stable home environment;
(4) ability and willingness to provide guidance,
education, necessities, and special needs;

The Law
Best interests of the child continued:
(5) plans for proposed care and upbringing;
(6) permanence and stability of the family; and
(7) relationship by blood or adoption between the
persons applying for custody.

The Law
Changes to how Ontario courts handle child
custody cases in effect since March 1, 2010
before, a court did not consider past conduct (e.g.
abuse) when giving custody unless it directly
involved a parent’s ability to parent
now, judges consider record checks and
Children’s Aid Society (CAS) reports

The Law
The case of Katelynn Sampson
CHANGE WAS NEEDED!

Custody Application
What is an Affidavit?
 a legal document that a person swears is the truth
 it must be done in writing and before a witness
 it is a woman’s chance to tell her story to the court
 the most important part of a custody application

Custody Application
An affidavit should answer:
Who is my family?
What do I want?
Why should the court decide in your favour?

Custody Application
More about Affidavits
a copy is sent to the child’s father or his lawyer
a parent has the chance to reply in their affidavits
to anything the other parent says that is untrue
affidavits may be prepared by others if they have
relevant information

Leaving an abusive relationship
with the child
To protect yourself legally:
begin the custody proceedings immediately
document any violence you experience
Tell your lawyer and/or the court that she took
your child for safety reasons

with the child
To protect yourself legally continued:
communication
• children are safe
• ex-partner has a way of communicating with
them
document your actions

without the child
What you can do
 keep in frequent contact with your child
 begin custody proceedings as soon as possible
 do everything you can to ensure that your child is
safe, understands what is happening, knows that
you love her/him, and knows how to contact you
or someone else they trust

Remember
It is very important that women never forget
their own safety!

Child Access
Denying Access
women sometimes want or need to deny the
father access to their children
for example: the children do not want to visit the
father; they repeatedly return from access visits
extremely upset; the father is not paying his child
support

Child Access
Denying access continued:
the custodial parent must support and encourage
access by the non-custodial parent even if it is
inconvenient or the children do not want to go
if the mother is repeatedly unhappy about the
visits, she can talk to her lawyer about returning
to court to vary the access order.

Child Access
Denying child access continued:
if a mother believes that the children will be
harmed during a visit, she can refuse the visit
whenever a custodial parent denies access, she
should immediately tell her lawyer.
she should also document any access issues.

Child Access
When the children do not want to visit with their
 if the children are consistently agitated about
visitation with their father, she may want to consider
having them speak with a counsellor or therapist
 if a counsellor or therapist learn about safety issues
concerning the child, they can support a legal
proceeding to limit the father’s access

Child Access
When he does not exercise his access
 the mother should document all details
 if he wants to withdraw from access for a specified
time period, confirm it with him formally
 keep in touch with your lawyer if you wants to return
to court to vary the access order

Questions
About child custody and access?

Child Protection
What is it?
The Ontario government has authority to become
involved with families if children are being harmed
as a result of abuse or neglect by their parents.

The Law
The Child and Family Services Act (CFSA)
sets out what makes a child “in need of
protection,” the types of abuse and neglect, and
the procedures to be followed
it is not criminal legislation
it cannot be used to punish a parent.

The Law
Parents must treat their children in a certain
way. They must not:
be abusive towards their child,
neglect their child, or
allow others to mistreat, abuse or neglect their
child.

The Law
Guidelines to help identify abuse and neglect:
sexual contact
physical punishment
threats, intimidation or unreasonable control

The Law
Guidelines to help identify abuse and neglect
continued:
no adequate, safe housing
no medical attention when required
no appropriate supervision

The Law
children who witness their mothers being
abused are not considered to be potentially at risk
of harm
authorities can become involved if they do not
believe a mother has taken steps ensure a child’s
safety

The Law
Who reports child abuse or neglect?
everyone has a legal duty to report abuse or
neglect to the CAS
certain professionals can be charged with an
offence and punished if they fail to report (e.g.
doctors, nurses, social workers, teachers, shelter
workers, etc.)

Children’s Aid Society
What is the Children’s Aid Society (CAS)?
a child protection agency given authority by the
Ontario government
it can remove children from their families in
certain situations
it must use the least intrusive measures possible

When does the CAS become involved?
when a child has been or is likely to be neglected
or abused
CAS social workers are specially trained to work
with these situations
CAS lawyers help to prepare all court documents
and speak for the agency in any court appearance

The Process
they receive a referral
they investigate and assess safety and risk
if protection is needed, a voluntary arrangement is
sought
if parent/s do not consent to the arrangement,
the CAS will seek a court order

Two kinds of involvement
Voluntary involvement: the parent/s consent to
the involvement of the CAS.
Involuntary involvement: the parents do not
consent, so the CAS goes to court to get an order.

Involuntary involvement continued:
the CAS goes to Family Court to request that the
judge declare the child is in need of protection
this must happen within 5 days
submissions are made to the judge
if your child is removed from your home without
consent, obtain legal advice

If an ex-partner is mistreating the children
during access visits:
the CAS can help you
if you report the abuse, they will conduct an
investigation
if they find abuse, they will take steps to protect
your children

Crown Wardship
children under 6 years old who have been in the
care of the CAS for a total of 12 months can
become Crown Wards and be placed for
adoption
this is done in the “best interests of the child”

Parental Rights
Parents have the rights to:
be notified of all court proceedings
make submissions to the judge
be represented by a lawyer
get legal aid if they are eligible

Parental Rights
Continued:
take part in the decisions affecting their child
information the CAS has about their family
private visitation with their child unless a court
decides otherwise

Making a complaint against the CAS
talk to your CAS worker
talk to your CAS worker’s supervisor
make a formal complaint to The Child and
Family Services Review Board (CFSRB)

Making a complaint against the CAS
ask for a complaint form from the CAS
the form is called “Request for Review of
Children’s Aid Society”
if CFSRB reviews the complaint, it will take up to
20 days to get a hearing

Questions
About child protection and the
Children’s Aid Society?

Conclusion
keep a copy of everything related to any legal
proceedings and CAS involvement
obtain a copy of everything a lawyer has on a file
about your legal proceeding
obtain a copy of any report written about you or
your family

Conclusion
keep any certificates showing completion of a
course or program that is required by CAS
keep documentation about any contact you might
have with an abusive partner or former partner
make sure you write down the date on these
documents

Conclusion
Most importantly:
think about your safety and know...
YOU ARE NOT ALONE!

Resources
For women who experience violence
 Assaulted Women's Help Line: 1 866 863-0511
 Victim Support Line toll-free: 1-888-579-2888
 Ontario Network of Sexual Assault/Domestic
Violence Treatment Centres: 416-323-6400
 Femaide (Francophone crisis line): 1-877-336-2433

Resources
For women who experience violence continued
 Ontario Victim Services Secretariat:
www.attorneygeneral.jus.gov.on.ca/english/ov
ss
 Shelternet: www.shelternet.ca

Resources
Family law
 Legal Aid Ontario: www.legalaid.on.ca
 Family Law Offices:
• in Ottawa: 613-569-7448
• in Thunder Bay: 807-346-2950
• in Toronto: 416-348-0001

Resources
Family law continued
 Family Law Information Centres (FLIC):
www.attorneygeneral.jus.gov.on.ca/english/fami
ly/infoctr.asp
 LSUC Lawyer Referral Service: 1-800-268-8326

Resources
Other
 The Child and Family Services Review Board:
www.cfsrb.ca
 Family Law Rules Forms:
http://www.ontariocourtforms.on.ca/english/fami
ly/family

Resources
Other continued
 Ontario Association of Children’s Aid
Societies:
www.oacas.org

Contact and Referral
If you require general legal information or referrals,
please contact me.
E-mail: legaldirector@metrac.org
Direct line: 416-392-3148

Questions
Any further questions or
comments?

This webinar was brought to you by
CLEONet
For more information visit the Family Law
section of CLEONet at www.cleonet.ca
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visit:
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Child Custody and Protection Slideshare Version

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