What to do if the CAS has an Opinion Regarding your Custody Case?
This situation arises often. The parents have a legal dispute regarding custody and/or access to their children. The Children’s Aid Society (CAS) does not wish to be a party to the legal proceeding, but writes a letter stating their position on the matter. If the judge makes a decision contrary to the CAS position, then its agents will commence a Protection Application and impose its own solution to the matter.
It is good that the court and parents know the position of the CAS early. It saves a great deal of time and heartache. The problem, however, is the amount of influence the CAS has in the result without corresponding accountability.
If the CAS brings a Protection Application, then there is accountability. They must justify their decision before a judge. The parent gets to see the evidence supporting the CAS position is allowed to challenge the witnesses and Assessors as well as to collect evidenced on his own behalf. With this informal letter writing process, however, the aggrieved parent does not know why the CAS takes its position. It does not know the evidence the CAS is using and has not opportunity to counter the evidence in court.
Technically, the judge is free to ignore the CAS wishes. In reality, no judge will send a child to a home with the knowledge that the child will be apprehended the next day and given to the other parent.
The case of Children’s Aid Society of Ottawa v. A.V., 2016 ONCA 361 (CanLII), the Ontario Court of Appeal deals with a judge’s attempt to merge a child custody proceeding and a CAS Protection Application.
In this case, there was a final order that the parents have joint custody of the children (communication on the big issues) and shared custody (children spending about ½ the time with each parent). The order was made in 2012.
In December 2013 the CAS brought a Protection Application. They felt that the children were exposes to too much parental conflict. They asked that CAS be allowed to supervise the custody and access to the children for the next six months.
The Father agreed to undergo a Parental Assessment. The Assessor concluded that the Father was the source of the conflict and was alienating the children against the Mother. The Assessor recommended that the Mother have sole custody. He also recommended that the children should live with the Mother and the Father should have supervised access.
The Children’s Aid Society sought to amend its position. It was asking for an order as per the recommendation of the Assessor.
The Mother brought a motion to change the 2012 Order to reflect the Assessor’s recommendations.
The Father also brought a motion to change, arguing that he should have custody and that the children should reside with him.
Justice LaBrosse took control of all three proceedings. He gave a temporary order that reflected the Assessor’s recommendations. The CAS then wanted to withdraw its Protection Application, arguing that this new status quo meant that there was no further child protection concerns.
Justice LeBrosse denied the CAS request to withdrawal. Instead, Justice LaBrosse ordered that .there would be one hearing to simultaneously deal with all three court proceedings.
Justice LaBrosse heard the motions to change. He held that the Assessor’s recommendations should be followed. He also held that the CAS could now withdraw its Protection Application.
The Father appealed. Essentially, he argued that the Children’s Aid Society was deciding the case even though the Father was unable to challenge the CAS position in court.
First, the Father argued that it was wrong that he was prohibited from cross-examining the CAS evidence. The Court of Appeal held, however, that Justice LaBrosse had discretion in deciding whether the evidence should be cross-examined. The Father had the option of cross-examining the witnesses before trail, but chose not to do so.
Second, the Father argued that the CAS was making submissions as to where the child would reside without first passing the threshold of establishing that the children were in need of protection in the first place. The Court of Appeal held, however, that Justice LaBrosse did make a finding as to whether the children were in need of protection. Justice LaBrosse held that the children are in no need of protection providing that the Assessor’s recommendations are followed.
Third, the Assessor’s Report was used as evidence in the child custody dispute. According to statute, Assessment Reports used in Child Protection Applications should not be used in other court proceedings unless on consent.
The Court of Appeal held, however, that Justice LaBosse did not discuss the Assessor’s Report when making his decision on the child custody dispute. Also, the Father used sections of the Assessment Report as evidence for his case. He could not use parts of it and ban the full report from being before the judge.
The Father also argued that the judge should not have heard the motions to change in the first place. First, the Father argued that, as per the statutes, a Child Protection Application should stay or suspend a child custody dispute. The Court of Appeal held, however, that Justice LaBrosse was allowed to bend the rules in order to have a faster and more efficient hearing of the merits of the case.
The Father also argued that there was no material change in circumstance that required the 2012 order to be changed. The Court of Appeal held, however, that failure of the parents to get along in a joint custody arrangement can be a material change of circumstance.
This decision generally makes the CAS more accountable. The CAS had to state their position in a formal Child Protection Application. The CAS Child Protection Application obviously had an influence on Justice LaBrosse’s decision to give the children to the Mother on a temporary basis. Given the CAS influence in that decision, however, it could not withdraw its evidence from scrutiny. The Father still had the right to cross-examine the evidence before trial.
Having all three hearing at once saved everyone a lot of time and trouble.
I believe, however, that any court observer would find it difficult to accept that Justice LaBrosse could ignore the Assessor’s Report in deciding child custody and then examine it when discussing continue CAS involvement. It must be remembered, however, that the Assessor’s Report would be the key evidence regardless as to whether there was two separate hearings before different judges or one hearing before the same judge. The bottom line is that the CAS will get its way and will use the Assessor’s Report as its justification for its decision.
You can read the decision here.