Post by litigator on Jun 24, 2008 6:54:11 GMT -5
Amendments to the Child and Family Services Act provide the courts with a fifth option at the initial disposition stage of child protection proceedings which would be the ability to grant custody of the child(ren) to persons other than a foster parent, if this is in the best interests of the child(ren). This option is set out in a new section 57.1 of the CFSA which reads as follows:
Custody Order
57.1 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57 (1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.
Deemed to be order under Children's Law Reform Act
(2) An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (l) shall be deemed to be made under section 28 of the Children's Law Reform Act and the court,
(a) may make any order under subsection (1) that the court may make under section 28 ofthat Act; and
(b) may give any directions that it may give under section 34 of that Act.
Order restraining harassment
(3) When making an order under subsection (1), the court may, without a separate application under section 35 of the Children's Law Reform Act,
(a) make an order restraining any person from molesting, annoying or harassing the child or a person to whom custody of the child has been granted; and
(b) require the person against whom the order is made to enter into such recognizance or post such bond as the court considers appropriate.
(4) An order under subsection (3) is deemed to be a final order made under section 35 of the Children's Law Reform Act and may be enforced, varied or tenninated only in accordance with that Act.
Appeal under s. 69
(5)Despite subsections (2) and (4), an order under subsection (1) or (3) and any access order under section 58 that is made at the same time as an order under subsection (1) are orders under this Part for the purposes of appealing from the order under section 69.
Conflict of laws
(6)No order shall be made under this section if,
(a) an order granting custody ofthe child has been made under the Divorce Act (Canada); or
(b) in the case of an order that would be made by the Ontario Court of Justice,the order would conflict with an order made by a superior court.
Critical Points on 57.1 Custody Orders
a) The custody order in s. 57.1 can only be made once there has been a finding that a child is in need of protection.
b) Once the finding has been made, the test is whether it is in a child's best interests to make this type of order as opposed to an order under s. 57(1).
c) The Society or any other party can apply for a party or other persons to have custody of the child. These third persons are not required to be parties to the action, but they must consent to the custody order.
d) The court cannot make s.57.1 custody orders in favour of a foster parent. Foster parents have been given additional rights that I will outline in another post.
e) S. 57. 1 custody orders and any access orders made at the same time as these custody orders are deemed to be orders made under s. 28 of the Children's Law Reform Act.
A Few of the Advantages of the new custody provisions
1) There are a number of cases that will be removed from the child protection system if the persons caring for the child, or proposed caregivers obtain custody orders. In these cases, the Society wants to be sure that a legal structure is in place before
they close the case. Most often this happens where a third party has assumed care for a child. There are a number of reasons why these caregivers do not obtain a custody order:
a) they don't qualify for legal aid and don't have the financial resources to obtain counsel.
b) they might live far from the court and it might be difficult for them to make the arrangements to attend at the court to complete the paperwork and make court appearances.
c) they might have literacy or language challenges that make the process daunting to them.
d) they find the idea of going to court to be intimidating.
e) they don't want to get directly involved in litigation with the former caregIver.
f) they don't know where or even who the child's parent is and don't want to have to locate and serve them or bring motions related to service.
g) lack of motivation.
The caregiver does not have to be a party to the action; the Society can seek this relief for them. There is no expense to the caregiver if the Society brings the application. They can save considerable money, especially if the case is contested. It is hoped that less caregivers will withdraw their plans to care for children if the financial pressure oflitigation is removed. The caregiver doesn't have to navigate their way around the paperwork or the court system. The caregiver does not have to travel to court. The CAS can do all of the paperwork and make all of the required court appearances. The caregiver doesn't have to be a direct litigant against the fonner caregiver. There may be a number of reasons they would prefer to avoid this, such as wanting to stay on good terms with the fonner caregiver or extended family. Further, they won't be exposed to a costs order if they aren't added as a party. The caregivers will have direct access to Society evidence and Society resources by using the CFSA process. Litigants are often unfamiliar as to how to access this in domestic proceedings, especially when unrepresented
Custody Order
57.1 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57 (1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.
Deemed to be order under Children's Law Reform Act
(2) An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (l) shall be deemed to be made under section 28 of the Children's Law Reform Act and the court,
(a) may make any order under subsection (1) that the court may make under section 28 ofthat Act; and
(b) may give any directions that it may give under section 34 of that Act.
Order restraining harassment
(3) When making an order under subsection (1), the court may, without a separate application under section 35 of the Children's Law Reform Act,
(a) make an order restraining any person from molesting, annoying or harassing the child or a person to whom custody of the child has been granted; and
(b) require the person against whom the order is made to enter into such recognizance or post such bond as the court considers appropriate.
(4) An order under subsection (3) is deemed to be a final order made under section 35 of the Children's Law Reform Act and may be enforced, varied or tenninated only in accordance with that Act.
Appeal under s. 69
(5)Despite subsections (2) and (4), an order under subsection (1) or (3) and any access order under section 58 that is made at the same time as an order under subsection (1) are orders under this Part for the purposes of appealing from the order under section 69.
Conflict of laws
(6)No order shall be made under this section if,
(a) an order granting custody ofthe child has been made under the Divorce Act (Canada); or
(b) in the case of an order that would be made by the Ontario Court of Justice,the order would conflict with an order made by a superior court.
Critical Points on 57.1 Custody Orders
a) The custody order in s. 57.1 can only be made once there has been a finding that a child is in need of protection.
b) Once the finding has been made, the test is whether it is in a child's best interests to make this type of order as opposed to an order under s. 57(1).
c) The Society or any other party can apply for a party or other persons to have custody of the child. These third persons are not required to be parties to the action, but they must consent to the custody order.
d) The court cannot make s.57.1 custody orders in favour of a foster parent. Foster parents have been given additional rights that I will outline in another post.
e) S. 57. 1 custody orders and any access orders made at the same time as these custody orders are deemed to be orders made under s. 28 of the Children's Law Reform Act.
A Few of the Advantages of the new custody provisions
1) There are a number of cases that will be removed from the child protection system if the persons caring for the child, or proposed caregivers obtain custody orders. In these cases, the Society wants to be sure that a legal structure is in place before
they close the case. Most often this happens where a third party has assumed care for a child. There are a number of reasons why these caregivers do not obtain a custody order:
a) they don't qualify for legal aid and don't have the financial resources to obtain counsel.
b) they might live far from the court and it might be difficult for them to make the arrangements to attend at the court to complete the paperwork and make court appearances.
c) they might have literacy or language challenges that make the process daunting to them.
d) they find the idea of going to court to be intimidating.
e) they don't want to get directly involved in litigation with the former caregIver.
f) they don't know where or even who the child's parent is and don't want to have to locate and serve them or bring motions related to service.
g) lack of motivation.
The caregiver does not have to be a party to the action; the Society can seek this relief for them. There is no expense to the caregiver if the Society brings the application. They can save considerable money, especially if the case is contested. It is hoped that less caregivers will withdraw their plans to care for children if the financial pressure oflitigation is removed. The caregiver doesn't have to navigate their way around the paperwork or the court system. The caregiver does not have to travel to court. The CAS can do all of the paperwork and make all of the required court appearances. The caregiver doesn't have to be a direct litigant against the fonner caregiver. There may be a number of reasons they would prefer to avoid this, such as wanting to stay on good terms with the fonner caregiver or extended family. Further, they won't be exposed to a costs order if they aren't added as a party. The caregivers will have direct access to Society evidence and Society resources by using the CFSA process. Litigants are often unfamiliar as to how to access this in domestic proceedings, especially when unrepresented