It is often said that “family is everything,” and that no one will love you and care for you like your family. This is very true when you are facing the possibility of having your child/children be apprehended by a child protection agency, but instead will allow your child/children to be cared for by one or more of your family members, so long as they have approved same. In child protection (CAS) cases, this is known as a “kin placement,” and it is generally a much more appealing option to parents, as opposed to seeing your child/children going into foster care for an unknown period of time.
However, this blog is not about placing child/children in kin care. Rather, it’s about what happens when the kin placement ends. I have seen a growing trend of nasty family quarrels resulting in court actions when family members can no longer agree about who the child/children should reside with. There are often no “clear cut” solutions to the matter, and more often than not, the financial consequence of who the child/children should reside with is the underlying focus of the quarrel.
I will try to present the concerns from both sides of these disputes: on one side, you have the biological parent/parents, who want the child/children returned to them; on the other side, you have the kin/family who want the child/children to stay with them. It may not be the first, second or even last thing on your mind when you are facing the prospect of losing your child/children to the CAS, but now that I have mentioned it, you may want to give a thought or two when deciding on what needs to be done when the child protection agency no longer sees a need to stay involved in your lives.
For the rest of the blog, and for the sake of easy reading, I will refer to the situation involving one child, two biological parents, and one kin.
Concern #1 – the Role of Child Welfare Agency (the CAS)
As mentioned above, when the CAS comes knocking at your door and they are looking to apprehend your child, they must consider all other realistic options before taking the child. One of the more common solutions is to see if a family member is a viable placement option. If the kin is approved, the child is placed with the family member until the parents have addressed the concerns that led them to get involved in the first. This includes, but is not limited to, substance abuse/addiction issues, serious mental health concerns, transiency/homelessness, criminality, domestic violence issues, or income insecurity.
Let’s say that, after 6 to 12 months, the parents have addressed the underlying issues/concerns of the CAS, and are now ready to have the child returned to their care. In some cases, the kin are happy to see the children returned to the parents, and a “happily ever after” ending is achieved. But as mentioned above, in other cases, what if the kin does not wish to return the child?
In such cases, both sides look to the CAS to “break the tie” and decide who will get the child. That is not the role of the CAS. If there is no longer an underlying protection concern (as defined by their legislation, the Child, Youth and Family Services Act, or the CYFSA), they may ask the court to terminate their involvement. In many cases, that is what the court will do. But if the conflict between the parents and the kin is so great that the tension, angst and animosity is a protection concerning in and of itself, they will not do so, and the matter may need to proceed to a trial for a judge to decide on what should happen.
In the vast majority of cases, if the CAS no longer sees a formal role for them to be involved with the parents, that is a very strong indication that the child will be returned to the parents. However, if the kin can demonstrate to the court that the CAS has not done its job to protect the child from harm, and the original or modified protection concerns still exists, then there may be merit for the kin to oppose the end of the CAS’ involvement. The “practical” burden will fall on them to present enough evidence to convince a judge that the CAS was/is at fault, that the parents still pose a risk, and that kin placement should continue.
Concern #2 – Dueling Decision-Making Claims
If the parties do not agree on where the child should reside once the CAS steps out, this common scenario often results in the kin bringing a claim for decision-making responsibility (formerly called “custody”) under the Children’s Law Reform Act (the CLRA).
In this scenario, the test to determine who should have decision-making responsibility is based on the legal concept of “the best interests of the child.” This wording is also defined in the CLRA, and consideration is given to a list of factors, such as the child’s needs, the nature and strength of the child’s relationship to the respective parties, the willingness of each party to facilitate parenting time with the other party and with other family members, the child’s history of care, the child; views and preferences, the plans for the child’s care going forward, any family violence and other related factors.
In deciding what is best for the child, it is not a matter of tallying each side’s score with the “highest score” being the winner. Rather, the court looks at the totality of the factors and must decide what is best for the child. Some factors may weigh more heavily than others depending in the child in question. I have often seen cases lost by parties who only wish to prove that the other side can only score a “zero,” rather than focusing on what they bring to the table for the child. A “scorched earth” litigation/practical approach will not endear such a litigant to the judge. Familial harmony and keeping the child out of conflict’s way will go a long way to bolster a party’s case in court.
Concern #3 – the “Contact Order” Claim
Similar to the above concern, sometimes the kin will agree to have the child reside with the parents, but they will seek to have time with the child to such an extent that it will appear as if they want to co-parent the child with the parents. This happens when the kin brings a claim for a “contact order” under the Children’s Law Reform Act (the CLRA).
In this scenario, the test to determine whether they should have contact time is also based on the same “best interests of the child” test. But this time, the sole issue is whether the kin (and not the parents) meets the factors set out under the CLRA
Once again, in deciding what is best for the child, it is not a matter of tallying the kin’s score. Again, the court looks at the totality of the factors and must decide if such contact is best for the child. Some factors may weigh more heavily than others depending in the child in question, especially the child’s age, the child’s viewpoint, and the history (or lack thereof) of the kin’s care of the child. There is recent case law to suggest that “a blood relationship is not everything” and will not grant contact time simply because there is a genetic tie to the child – it must be well beyond that measure, i.e. it has to be what is best for the child, and not for the kin seeking the contact.
From the viewpoint of the parents, do not be quick to burn the bridge of your kin who was there to help in you in your time of need, especially when no one else would do so. Life has a funny way of repeating itself, and you may need to go to the well of “goodwill” of the same kin at a sooner-or-later date, as yet to be determined.
Concern #4 – The Money Issue
Sadly, the real underlying reason that one party may want the child with them is that there is a significant financial advantage to having the child in their care.
In some cases, the kin may be entitled to get financial compensation from the CAS for caring for and eventually adopting the child. In other cases, both parties are fighting over the child tax credit that will go to the party who has primary care of the child. Further, in some cases, an additional child in the household will lead to an increase in social assistance payment to that party. Still, in some other cases, usually where there is a legal battle between one parent and one kin, they will seek sole or primary decision-making responsibility so they can be the one to claim child support from the other parent.
From this perspective, it is easy to see why there is often such a nasty legal battle to decide who the child lives with – for some people, it is literally about their financial survival or bust.
Concern #5 – The “Vengeance” Battle
Perhaps the most distasteful concern that sometimes rears its ugly head is when the parties just hate each other, and it seems that they are both fighting out of spite, out of anger, out of jealous, or more accurately, as matter of revenge, to hurt the other party for some previous harm befallen them by the other party. Do not for a second discount this petty yet quite real reason for family law litigation. As I have seen firsthand in some cases, the hate that one person has for the other party is often greater than the love they have for the child.
For the lawyers reading this blog, I strongly urge you to distance yourself from such cases, especially where you represent the “aggressor client.” The outcome is not likely to be in your client’s favour, and your client’s anger will quickly turn to you as the reason for this grave injustice. Even if you are representing the other side, such toxicity has a way of seeping into your day-to-day practice, and even in your personal life – no case is worth that kind of tarnish.
For the clients reading this blog, I strongly urge you to try whatever you can to resolve such cases out of court, using alternative dispute resolution, such as mediation or lawyer/client meetings. Such cases rarely produce a “win” for you; rather, success will be measured as the degree of loss you have suffered. This includes emotional, mental, and financial losses, not to mention the irreversible and often incalculable negative impact of the conflict on the subject child.