The document is a presentation by Zahra Dhanani from METRAC on child custody, access, and protection issues for women experiencing domestic violence. It provides an overview of key topics like types of custody, applying for custody, denying access, and involvement from child protection agencies. The presentation aims to give women accessible information to make well-informed decisions regarding their children.
1. To view this presentation as a
webinar with sound visit CLEONet
http://www.cleonet.ca/training
CLEONet is a web site of legal information
for community workers and advocates
who work with low-income and
disadvantaged communities in Ontario.
www.cleonet.ca
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. "Safer for Women, Safer for Everyone"
Child Custody and Protection
Presented by:
Zahra Dhanani
Legal Director, METRAC
October 26, 2010
4. "Safer for Women, Safer for Everyone"
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
5. "Safer for Women, Safer for Everyone"
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
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"
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
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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!
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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?
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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"
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
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41. The Law
Guidelines to help identify abuse and neglect
continued:
no adequate, safe housing
no medical attention when required
no appropriate supervision
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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
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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
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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"
51. Parental Rights
Parents have the rights to:
be notified of all court proceedings
make submissions to the judge
be represented by a lawyer
get legal aid if they are eligible
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52. Parental Rights
Continued:
take part in the decisions affecting their child
information the CAS has about their family
private visitation with their child unless a court
decides otherwise
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53. Children’s Aid Society
Making a complaint against the CAS
talk to your CAS worker
talk to your CAS worker’s supervisor
make a formal complaint to The Child and
Family Services Review Board (CFSRB)
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54. Children’s Aid Society
Making a complaint against the CAS
ask for a complaint form from the CAS
the form is called “Request for Review of
Children’s Aid Society”
if CFSRB reviews the complaint, it will take up to
20 days to get a hearing
"Safer for Women, Safer for Everyone"
56. Conclusion
keep a copy of everything related to any legal
proceedings and CAS involvement
obtain a copy of everything a lawyer has on a file
about your legal proceeding
obtain a copy of any report written about you or
your family
"Safer for Women, Safer for Everyone"
57. Conclusion
keep any certificates showing completion of a
course or program that is required by CAS
keep documentation about any contact you might
have with an abusive partner or former partner
make sure you write down the date on these
documents
"Safer for Women, Safer for Everyone"
59. Resources
For women who experience violence
Assaulted Women's Help Line: 1 866 863-0511
Victim Support Line toll-free: 1-888-579-2888
Ontario Network of Sexual Assault/Domestic
Violence Treatment Centres: 416-323-6400
Femaide (Francophone crisis line): 1-877-336-2433
"Safer for Women, Safer for Everyone"
60. Resources
For women who experience violence continued
Ontario Victim Services Secretariat:
www.attorneygeneral.jus.gov.on.ca/english/ov
ss
Shelternet: www.shelternet.ca
"Safer for Women, Safer for Everyone"
61. Resources
Family law
Legal Aid Ontario: www.legalaid.on.ca
Family Law Offices:
• in Ottawa: 613-569-7448
• in Thunder Bay: 807-346-2950
• in Toronto: 416-348-0001
"Safer for Women, Safer for Everyone"
62. Resources
Family law continued
Family Law Information Centres (FLIC):
www.attorneygeneral.jus.gov.on.ca/english/fami
ly/infoctr.asp
LSUC Lawyer Referral Service: 1-800-268-8326
"Safer for Women, Safer for Everyone"
63. Resources
Other
The Child and Family Services Review Board:
www.cfsrb.ca
Family Law Rules Forms:
http://www.ontariocourtforms.on.ca/english/fami
ly/family
"Safer for Women, Safer for Everyone"
65. Contact and Referral
If you require general legal information or referrals,
please contact me.
E-mail: legaldirector@metrac.org
Direct line: 416-392-3148
"Safer for Women, Safer for Everyone"
67. This webinar was brought to you by
CLEONet
For more information visit the Family Law
section of CLEONet at www.cleonet.ca
For more public legal information webinars
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