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HOW TO DRAFT CUSTODY ORDERS MADE DURING A CHILD PROTECTION PROCEEDING?

by Daniel Gloade on February 11, 2015

When a Child Protection Agency brings a court proceeding, it must notify all relevant parties.  This includes the child’s parents, guardians (if different) and the individuals caring for the children (if different).  A party receiving notice has the option of seeking custody of the child.  You can find this remedy under section 57.1 of the Child and Family Services Act.  You can see it here.

What happens, however, if an individual wants to bring a Motion to Change the custody order?  Does the Child Protection Agency need to be in the title of the proceeding?  Should there be a separate order without naming the Society?  What if it is a good idea to inform the Child Protection Agency of a potential change in the custody/access of the child without making them a formal party?

In the case of Children’s Aid Society of London and Middlesex v. K.E., 2015 ONSC 744, however, the Honourable Mr. Justice Victor Mitrow provides some useful guidance.  You can find the full text of this decision here.

Here is how its done:

  1.  The interim (temporary) orders issues pursuant to the child protection proceeding are terminated.
  2. A new Order is issued pursuant to section 57.1.
  3. It will have the same court file number as the child protection proceeding and it will be registered in the child protection file.
  4. This Order, however, will list new custodial parents as the Applicants and the old custodial parents as the Respondents.
  5. The Order will state who has custody of the children;
  6. The Order will state who shall have access to the children;
  7. The Order shall state that it is deemed pursuant to the Children’s Law Reform Act (a standard child custody Order);
  8. There should be a provision that if someone brings a motion to change this new Order then the applicable Child Protection Agency must  be notified (this provision is optional and based on the facts of this case).

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