This webinar is brought to you by CLEONet cleonet

1. This webinar is brought to you by CLEONet www.cleonet.ca CLEONet is a web site of legal information for community workers and advocates who work with low-income and disadvantaged communities in Ontario. 2010, Community Law School (Sarnia-Lambton) Inc.

2. About our presenter… Long-time educator, activist and lawyer, Zahra Dhanani is the Legal Director for the Metropolitan Action Committee on Violence Against Women and Children (METRAC), an agency that ensures access to justice for women, youth and children facing the threat of violence.

3. Child Custody and Protection Presented by: Zahra Dhanani Legal Director, METRAC October 26, 2010 "Safer for Women, Safer for Everyone"

4. Who we are • METRAC The Metropolitan Action Committee on Violence Against Women and Children www.metrac.org • Ontario Women’s Justice Network www.owjn.org "Safer for Women, Safer for Everyone"

5. Today’s Objective • we are here to provide accessible, general information about the law regarding child custody and protection issues • we can answer general questions about the law, but we CANNOT provide legal advice • if you require legal advice, you must contact a lawyer "Safer for Women, Safer for Everyone"

6. Today’s Objective • there is NO right or wrong response! • this presentation is not intended to encourage you to make a particular decision • KEY: access to information to make well-informed decisions "Safer for Women, Safer for Everyone"

7. Overview (1) Introduction (2) Child Custody and Access • What is it? • Law – The Divorce Act, The Children’s Law Reform Act • What you can do (3) Child Protection • What is it? • Law – The Child and Family Services Act • Children’s Aid Societies • What you can do (4) Resources "Safer for Women, Safer for Everyone"

8. Introduction • women with abusive partners face many challenges • a decision to leave an abusive partner may be influenced by concerns about their children, and custody and access issues "Safer for Women, Safer for Everyone"

9. Introduction • children who have been exposed to domestic violence are seen as potentially at risk of harm • child protection authorities can intervene in families "Safer for Women, Safer for Everyone"

10. Introduction • women from marginalized communities face even more challenges and barriers when they experience violence • cultural or religious pressures may influence a woman’s decision to stay in an abusive relationship "Safer for Women, Safer for Everyone"

11. Child Custody What is it? • responsibility • decision-making "Safer for Women, Safer for Everyone"

12. Child Custody Types of custody Sole custody: One parent has all the child care and decision-making responsibility. Joint custody: Both parents have the child care and decision-making responsibility. "Safer for Women, Safer for Everyone"

13. Child Access What is it? A Parent who does not have custody may be allowed regular visits with their children at scheduled times. "Safer for Women, Safer for Everyone"

14. Interim Custody and Access • if both parents agree on a short-term arrangement, their lawyers can prepare an agreement. • they will both sign and date it. • do not agree to an agreement that you think is unfair! "Safer for Women, Safer for Everyone"

15. Interim Custody and Access • if the parents cannot agree, they can go to mediation • if mediation is not successful, an application is made to family court and a judge will decide. "Safer for Women, Safer for Everyone"

16. The Law In Ontario, two different laws apply to custody and access. The Divorce Act applies if the parents are seeking a divorce, one parent is applying for custody at the same time. The Children’s Law Reform Act (CLRA) applies if the couple is not getting divorced. "Safer for Women, Safer for Everyone"

17. The Law Jurisdiction Divorce Act: person applying for the divorce lived in the province for at least a year. CLRA: the child is “habitually resident” in Ontario when the custody application is made. "Safer for Women, Safer for Everyone"

18. The Law Some exceptions: • child is present in Ontario at the start of process • substantial evidence regarding the best interests of the child in Ontario • no application for custody elsewhere • no other custody order in place • a real and substantial connection to Ontario • appropriateness "Safer for Women, Safer for Everyone"

19. The Law Who can apply for custody? • Both parents have an equal right to child custody until a legal agreement or order is made. • De facto custody: a child lives with one parent with the consent of the other parent. • A court must give permission for anyone other than the parents to apply for custody or access under the Divorce Act. No permission is needed under the CLRA. "Safer for Women, Safer for Everyone"

20. The Law Best interests of the child: (1) love, affection and emotional ties; (2) views and preferences of the child; (3) length of time in a stable home environment; (4) ability and willingness to provide guidance, education, necessities, and special needs; "Safer for Women, Safer for Everyone"

21. The Law Best interests of the child continued: (5) plans for proposed care and upbringing; (6) permanence and stability of the family; and (7) relationship by blood or adoption between the persons applying for custody. "Safer for Women, Safer for Everyone"

22. The Law Changes to how Ontario courts handle child custody cases in effect since March 1, 2010 • before, a court did not consider past conduct (e.g. abuse) when giving custody unless it directly involved a parent’s ability to parent • now, judges consider record checks and Children’s Aid Society (CAS) reports "Safer for Women, Safer for Everyone"

23. The Law The case of Katelynn Sampson CHANGE WAS NEEDED! "Safer for Women, Safer for Everyone"

24. Custody Application What is an Affidavit? • a legal document that a person swears is the truth • it must be done in writing and before a witness • it is a woman’s chance to tell her story to the court • the most important part of a custody application "Safer for Women, Safer for Everyone"

25. Custody Application An affidavit should answer: • Who is my family? • What do I want? • Why should the court decide in your favour? "Safer for Women, Safer for Everyone"

26. Custody Application More about Affidavits • a copy is sent to the child’s father or his lawyer • a parent has the chance to reply in their affidavits to anything the other parent says that is untrue • affidavits may be prepared by others if they have relevant information "Safer for Women, Safer for Everyone"

27. Leaving an abusive relationship with the child To protect yourself legally: • begin the custody proceedings immediately • document any violence you experience • Tell your lawyer and/or the court that she took your child for safety reasons "Safer for Women, Safer for Everyone"

28. Leaving an abusive relationship with the child To protect yourself legally continued: • communication • children are safe • ex-partner has a way of communicating with them • document your actions "Safer for Women, Safer for Everyone"

29. Leaving an abusive relationship without the child What you can do • keep in frequent contact with your child • begin custody proceedings as soon as possible • do everything you can to ensure that your child is safe, understands what is happening, knows that you love her/him, and knows how to contact you or someone else they trust "Safer for Women, Safer for Everyone"

30. Remember It is very important that women never forget their own safety! "Safer for Women, Safer for Everyone"

31. Child Access Denying Access • women sometimes want or need to deny the father access to their children • for example: the children do not want to visit the father; they repeatedly return from access visits extremely upset; the father is not paying his child support "Safer for Women, Safer for Everyone"

32. Child Access Denying access continued: • the custodial parent must support and encourage access by the non-custodial parent even if it is inconvenient or the children do not want to go • if the mother is repeatedly unhappy about the visits, she can talk to her lawyer about returning to court to vary the access order. "Safer for Women, Safer for Everyone"

33. Child Access Denying child access continued: • if a mother believes that the children will be harmed during a visit, she can refuse the visit • whenever a custodial parent denies access, she should immediately tell her lawyer. • she should also document any access issues. "Safer for Women, Safer for Everyone"

34. Child Access When the children do not want to visit with their • if the children are consistently agitated about visitation with their father, she may want to consider having them speak with a counsellor or therapist • if a counsellor or therapist learn about safety issues concerning the child, they can support a legal proceeding to limit the father’s access "Safer for Women, Safer for Everyone"

35. Child Access When he does not exercise his access • the mother should document all details • if he wants to withdraw from access for a specified time period, confirm it with him formally • keep in touch with your lawyer if you wants to return to court to vary the access order "Safer for Women, Safer for Everyone"

36. Questions About child custody and access? "Safer for Women, Safer for Everyone"

37. Child Protection What is it? The Ontario government has authority to become involved with families if children are being harmed as a result of abuse or neglect by their parents. "Safer for Women, Safer for Everyone"

38. The Law The Child and Family Services Act (CFSA) • sets out what makes a child “in need of protection,” the types of abuse and neglect, and the procedures to be followed • it is not criminal legislation • it cannot be used to punish a parent. "Safer for Women, Safer for Everyone"

39. The Law Parents must treat their children in a certain way. They must not: • be abusive towards their child, • neglect their child, or • allow others to mistreat, abuse or neglect their child. "Safer for Women, Safer for Everyone"

40. The Law Guidelines to help identify abuse and neglect: • sexual contact • physical punishment • threats, intimidation or unreasonable control "Safer for Women, Safer for Everyone"

41. The Law Guidelines to help identify abuse and neglect continued: • no adequate, safe housing • no medical attention when required • no appropriate supervision "Safer for Women, Safer for Everyone"

42. The Law • children who witness their mothers being abused are not considered to be potentially at risk of harm • authorities can become involved if they do not believe a mother has taken steps ensure a child’s safety "Safer for Women, Safer for Everyone"

43. The Law Who reports child abuse or neglect? • everyone has a legal duty to report abuse or neglect to the CAS • certain professionals can be charged with an offence and punished if they fail to report (e.g. doctors, nurses, social workers, teachers, shelter workers, etc.) "Safer for Women, Safer for Everyone"

44. Children’s Aid Society What is the Children’s Aid Society (CAS)? • a child protection agency given authority by the Ontario government • it can remove children from their families in certain situations • it must use the least intrusive measures possible "Safer for Women, Safer for Everyone"

45. Children’s Aid Society When does the CAS become involved? • when a child has been or is likely to be neglected or abused • CAS social workers are specially trained to work with these situations • CAS lawyers help to prepare all court documents and speak for the agency in any court appearance "Safer for Women, Safer for Everyone"

46. Children’s Aid Society The Process • they receive a referral • they investigate and assess safety and risk • if protection is needed, a voluntary arrangement is sought • if parent/s do not consent to the arrangement, the CAS will seek a court order "Safer for Women, Safer for Everyone"

47. Children’s Aid Society Two kinds of involvement Voluntary involvement: the parent/s consent to the involvement of the CAS. Involuntary involvement: the parents do not consent, so the CAS goes to court to get an order. "Safer for Women, Safer for Everyone"

48. Children’s Aid Society Involuntary involvement continued: • the CAS goes to Family Court to request that the judge declare the child is in need of protection • this must happen within 5 days • submissions are made to the judge • if your child is removed from your home without consent, obtain legal advice "Safer for Women, Safer for Everyone"

49. Children’s Aid Society If an ex-partner is mistreating the children during access visits: • the CAS can help you • if you report the abuse, they will conduct an investigation • if they find abuse, they will take steps to protect your children "Safer for Women, Safer for Everyone"

50. Children’s Aid Society Crown Wardship • children under 6 years old who have been in the care of the CAS for a total of 12 months can become Crown Wards and be placed for adoption • this is done in the “best interests of the child” "Safer for Women, Safer for Everyone"