Fact Sheet: Child Protection

Publication Date: 
2012
Resource Origin: 
Springtide Resources
Author: 
Pamela Cross, LLB

Child protection does not arise in every family law case involving woman abuse. However, it often comes up.  Sometimes, there are concerns about children being exposed to the abuse their mothers are experiencing.  Sometimes, mothers are concerned that their partners are not appropriate parents and look for assistance from child protection authorities to keep their children safe after they separate.

Each province and territory has its own law to deal with the protection of children. In Ontario, that law is the Child and Family Services Act (CFSA).

The CFSA  provides the legal framework for all child protection services.  Its purpose is to promote the best interests and well being of children and to protect them from abuse and neglect.

What does the Children's Aid Society do?

Children's Aid Societies (CAS) are responsible for carrying out the mandate of the CFSA  in communities across the province.

That mandate includes the following responsibilities:

  • investigating allegations or evidence that a child may be in need of protection
  • protecting such children
  • providing guidance, counselling and other services to families
  • providing care for children committed to its care
  • supervising children assigned to its supervision

Who is a child in need of protection?

If the CAS believes that a child needs to come under its care, this is called a child in need of protection. A child may be found to be in need of protection:

  • if the child has suffered physical, sexual or emotional harm because of acts, failures or neglect on part of the person who has responsibility for the child 
  • if there is the risk of any such harm

What does woman abuse have to do with child protection?

Children who are exposed to their mothers being abused can experience negative impacts, especially when that exposure is over a long period of time and or the abuse is severe.  Since the 1990s, child protection legislation has required professionals to report situations of woman abuse where they believe children have been exposed.

Unfortunately, this has not always worked in the interest of abused women and their children.

Initially, there was much over-reporting, sometimes because people were unclear about what the legislation required, but often because of poor understanding about the issue of violence against women.

Once involved, child protection authorities have often focused on holding the abused woman accountable for "failing to protect" her children while largely ignoring the perpetrator.

Interventions have often disempowered women and reinforced the belief that women are responsible for the violence. Common approaches have included:

  • telling the woman that her children will be removed if she does not leave the abuser
  • requiring her to get a restraining order
  • requiring her to attend violence against women services, which are intended to be voluntary

As a result, some women became reluctant to use any services at all because they were afraid the CAS would be called and they would have their children taken away.

More recent research has shown that not all children are as adversely affected by exposure as had been previously thought.  It also shows that children are most seriously affected when they are exposed to woman abuse and experience physical abuse themselves.

As a result, the tool used by the CAS to determine the appropriate response to a report of suspected child abuse has been revised.  It now states that exposure to woman abuse alone should not be defined as as requiring a child protection response, but rather that the presence of woman abuse in the home should be considered one risk factor among others.

This new "differential" response also incldues an increased focus on holding the perpetrator rather than the mother, responsible and accountable.

Should I use mediation?

The CFSA encourages the use of mediation both before and during court proceedings. This is not appropriate in woman abuse cases.  Even though the people must consent, abused women may feel pressured into participating.

Women may feel they have to trade away their legal rights to protect their children or may not feel safe to say how they really feel or what they really want.  As well, the abuser may try to manipulate the mediation process or the woman.

Will CAS understand my culture?

An attempt has been made in the legislation to provide services that reflect Aboriginal values and structures and there are some child protection agencies in the province that are Aboriginal-run.  Despite these measures, there are some serious challenges and problems for Aboriginal families in their dealings with child protection authorities.

Racialized women, immigrant, refugee and non-status women also report problematic treatment by child protection agencies.

What are my rights and responsibilities?

All parents have a responsibility not to harm their children, whether through actions or through neglect.

Abuse includes:

  • shaking, whipping, beating, punching, kicking (physical)
  • inappropriate touching (sexual)
  • calling a child mean names (emotional)

Neglect includes such things as:

  • not feeding, clothing or washing the child
  • leaving a child alone when the child is too young
  • not protecting the child from danger
  • adult behaviours such as drinking or drug use that can interfere with being a good parent

While the criminal law permits the use of some forms of physical punishment, this is not considered acceptable by child protection authorities. Even if a parent is not charged criminally for spanking a child, she may be investigated for abuse under child protection legislation.

It is very important for a woman who is involved with the CAS to have legal representation before she agrees to any plan proposed by the child protection agency.

Legal aid is available in child protection cases to women who qualify financially.  Duty counsel is available at family court for women who do not have a lawyer.

The woman has a legal right to:

  • receive all written material being used by the child protection agency in her case
  • be notified of and present at all court proceedings
  • make her own submissions to the judge
  • have a lawyer

This Fact Sheet contains general legal information only.  It is not a legal document, nor is it a replacement for legal advice.  Anyone in a situation involving family, immigration or refugee law is strongly urged to meet with a lawyer to understand fully their rights and responsibilities, the legal options available to them and appropriate legal processes.  A lawyer can interpret the law and provide advice based on the personal facts and information in the specific case.

For information about finding a lawyer in your community, contact Legal Aid Ontario at 1 800 668 8258 or 417 979 1446.

You can also visit Legal Aid Ontario online at www.legalaid.on.ca/en/locate/default.asp