Custody in Ontario can be given with just a letter or you can file an application for custody in the Family Court.
The parents can agree in the form of an answer to the court and don't have to be present.
Here is a link to the application Form 8 (General)
ontariocourtforms.on.ca/english/forms/family/forms/FLR_08_Nov1406_ODA.pdfCustody can also be transfered under the Family and Children's Services Act during a child protection hearing. The following is a post I made under Grandparenting and the CAS.
I would like to take some time to explain the new changes to the child and family services act, particularly sections 57. and 57.1 as it applies to Grandparents or other persons seeking an interest in custody or placement of children apprehended by the CAS, and the application for protection order is still before the courts. This is my personal understanding of the law as it applied to me in gaining custody of my grandsons.
This is not legal advice. Order where child in need of protection
57. (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child’s best interests:
Supervision order
1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.
Society wardship
2. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.
Crown wardship
3. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71 (1), and be placed in the care of the society.
Consecutive orders of society wardship and supervision
4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. R.S.O. 1990, c. C.11, s. 57 (1); 2006, c. 5, s. 13 (1-3).
Court to inquire
(2) In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part. 2006, c. 5, s. 13 (4).
Less disruptive alternatives preferred
(3) The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child. 1999, c. 2, s. 15 (1).
Community placement to be considered
(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbor or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person. R.S.O. 1990, c. C.11, s. 57 (4).
Idem: where child an Indian or a native person
(5) Where the child referred to in subsection (4) is an Indian or a native person, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with,
(a) a member of the child’s extended family;
(b) a member of the child’s band or native community; or
(c) another Indian or native family. R.S.O. 1990, c. C.11, s. 57 (5).
(6) Repealed: 1999, c. 2, s. 15 (2).
Idem
(7) When the court has dispensed with notice to a person under subsection 39 (7), the court shall not make an order for Crown wardship under paragraph 3 of subsection (1), or an order for society wardship under paragraph 2 of subsection (1) for a period exceeding thirty days, until a further hearing under subsection 47 (1) has been held upon notice to that person. R.S.O. 1990, c. C.11, s. 57 (7).
Terms and conditions of supervision order
(8) If the court makes a supervision order under paragraph 1 of subsection (1), the court may impose,
(a) reasonable terms and conditions relating to the child’s care and supervision;
(b) reasonable terms and conditions on,
(i) the child’s parent,
(ii) the person who will have care and custody of the child under the order,
(iii) the child, and
(iv) any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child; and
(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or purchase any goods or services. 2006, c. 5, s. 13 (5).
Where no court order necessary
(9) Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part. R.S.O. 1990, c. C.11, s. 57 (9).
Note: Despite the proclamation of the Statutes of Ontario, 1999, chapter 2, section 15, section 57 of this Act, as it read before March 31, 2000, continues to apply with respect to any proceeding under Part III, including a status review proceeding, that was commenced before March 31, 2000. See: 1999, c. 2, ss. 37 (5), 38.
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. 2006, c. 5, s. 14.
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 (1) 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 of that Act; and
(b) may give any directions that it may give under section 34 of that Act. 2006, c. 5, s. 14.
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. 2006, c. 5, s. 14.
Same
(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 terminated only in accordance with that Act. 2006, c. 5, s. 14.
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 orders under section 69. 2006, c. 5, s. 14.
Conflict of laws
(6) No order shall be made under this section if,
(a) an order granting custody of the 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. 2006, c. 5, s. 14.
Application of s. 57 (3)
(7) Subsection 57 (3) applies for the purposes of this section. 2006, c. 5, s. 14.
Effect of custody proceedings
57.2 If, under this Part, a proceeding is commenced or an order for the care, custody or supervision of a child is made, any proceeding respecting custody of or access to the same child under the Children’s Law Reform Act is stayed except by leave of the court in the proceeding under that Act. 2006, c. 5, s. 15.
Section 57. (1)
The CAS had brought forward an application for child protection. The court has options on how to proceed with placement. These options are supposed to be in the best interests of the child. The first apprehension usually receives a 6 month placement with a foster home with or without supervised visitation.
This is the time that is most crucial. As soon as you know of a child being apprehended by the CAS, and your intention is to take this child in, you must contact the CAS as soon as possible.
If you have contact with the parents, make your intentions known to them and have those intentions made available to their lawyer. Ideally you should seek the help of a lawyer.
The new law, section 57.1
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. 2006, c. 5, s. 14.
Deemed to be order under Children’s Law Reform Act
Basically this says that a judge has to look at alternate placement or custody. Your intentions on custody or placement need to be addressed subject to section 57.1
If the judge finds it to be in a better interest of the child to be placed with you other options in section 57. (1)
eg: foster home, then the judge has to grand an order in favor of those seeking custody or placement, subject to current ministry guidelines on eligibility. You would be required to have a police background check. It takes up to 6 weeks but usually can be sped up when it's a CAS screen. My cost was $15. You would be required to have a home inspection done. This can be done by the local CAS in your area. ( I know this process is humiliating, and you may feel defensive and judged, but keep one basic thought in mind.... this is what's best for the children)You would be required to have a plan of care. Here are some basic questions the CAS asked on their plan of care forms. Not all are relevant as you are not the parent who usually fills out the forms. I treated as a resume by applying for the full time job of being Grandma.
-where will I live?
-who if anyone, will live with you?
-where will the children live?
-what school or daycare will the children attend?
-what days and hours will the children attend school or daycare?
-are you enrolled in school or counseling?
-if you are enrolled in counseling, where do you attend?
-what support services will you be using for the children?
-do you have support from your family?
-if you have support from your family, who will help you and how --will they help you?
-what will the children's activities be?
-what will your source of income be?
-do you go to work or school?
-if you go to work or school, what are the details, including the days and hours you work or go to school, and who will look after the children while you are there?
-state why you feel this plan would be in the children's best interests.