The Children’s Aid Society Cannot Unilaterally Move A Child Into What Amounts to a New Custody Arrangement

Written on behalf of Arbesman Hamilton LLP

When the Children’s Aid Society (“CAS”) is given custody of a child, it has the ability move the child into what is known as an “extended access visit,” which is when a child moves into someone’s home for a period of time undefined at its outset. A recent case heard before the Ontario Court of Justice dealt with whether the CAS should be able to do so without first going before the courts.

From home to home to home

The child in this case was moved into the care of a family friend (A.L.) after her mother, who had a chronic seizure disorder, suffered a psychotic episode. A.L. was granted custody on December 16, 2016, five days after the episode occurred. The order included granting the mother access to the child at the discretion of the CAS at a minimum of twice per week. Meanwhile, the parties involved attempted to work towards placing the child, who was eight-years-old at the time, back in her mother’s care.

On June 1, 2017, the CAS placed the child in the home of another family friend, W.C., after the mother expressed she was unhappy with the care A.L. was providing. The court only learned of this move, which required the child to switch schools, on June 13. The CAS labeled the move an “extended access visit.” The court was concerned that the CAS had acted unilaterally in changing the child’s placement and ordered it to bring a motion to vary the interim supervision order.

A.L. was given an opportunity to participate in the motion, but chose not to. The court eventually ordered the child to be placed back in her mother’s care pursuant to six month’s of supervision by the CAS. Unfortunately, on August 28, 2017, two weeks after the order was made, the mother died. Since the court had not yet ruled on the motion to move the child into the care of W.C., she was placed back in the custody of A.L.

A Moot Decision, But A Decision Nonetheless

Although the court’s decision was now moot, the court decided to release it anyhow in the hopes of providing clarity around the CAS’ discretion to order an “extended access visit.”

The CAS defines an “extended access visit” as an access visit where the duration is not fixed at the start of the visit. The CAS understands it has the authority to implement such visits when the CAS has custody of a child. However, the court was concerned that in placing a child in such a manner, the child is effectively living full-time with someone while they are supposed to be in the care of the CAS, which could leave the child vulnerable to harm. Additionally, should the CAS remove the child from care under an extended access visit, it could do so without a hearing within five days of removal, as mandated by the Child and Family Services Act.

The court was sensitive about becoming overly involved in decision making of the CAS, and it noted several competing lines of authority on the limits of judicial jurisdiction to delegate in such matters. However, the court ultimately ruled that judicial approval must be granted before a child is moved into what amounts to a new custody arrangement, therefore placing some limits on “access at the discretion of the society.”

Decisions regarding custody and access of children can be some of the most important to make during a separation or divorce, and can impact other areas of separation including the division of property, where the parents live, or more. Custody decisions can have significant impacts on the obligations of parents. Contact Arbesman Hamilton LLP by phone at 416-481-5604 or online to schedule a consultation on custody or other family law issues.