You would think that life cannot get worse than when the local child welfare agency (sometimes called the Children’s Aid Society, or CAS) comes to your home and apprehends your children. Sadly, it can get worse, and often does. Not only can they take your children and limit any access you have to them, but they can also ask the court to end your ability to defend yourself in your own court case! They do this by getting an order for summary judgment. It seems unfair, but it happens a lot!
In this blog, I will tell how the summary judgment process works, how to try and stop the CAS from getting that order, and other tips to protect your rights in child protection cases.
Let’s step back a bit for a moment. Once the CAS gets involved in your life, and you are served with court papers, you must seek legal help right away. You can do this by hiring a lawyer privately or applying for a legal aid certificate through Legal Aid Ontario. You can apply by phone by calling 1-800-668-8258 and then following the prompted messages. You should get an answer from them fairly quickly. Once you get a lawyer, they will review the paperwork you have been served with and help you file an Answer and Plan of Care. This is your side of the story to the accusations and claims made by the CAS. This will generally get you to a settlement conference stage, to see if you can negotiate a settlement or move the matter to trial.
However, in some cases, the CAS may read your side of the story and determine that you do not have any defense against their claims. If they feel that what they are asking for will likely be automatically granted and then you are, in essence, simply delaying the inevitable, they will serve you (by serving your lawyer) with paperwork referred to a “Motion for Summary Judgment.”
The motion comes in two parts:
The Notice of Motion – this form tells the court and all affected party what the CAS wants when the matter will be heard in court, and where it will be heard. It is a fairly short document.
The Affidavit – this form supports the Notice, and it sets out the facts to support why they are asking for a summary judgment order. It is a rather long document.
Depending upon what court and what city you are in, the CAS’ motion for summary judgment is like a mini-trial of your case, and so you and your lawyer must be fully prepared to defend the motion. It is generally done by way of filing affidavit material, i.e., by writing out your reply to what the CAS is asking for and the statements they have made to support their position. It is not done by giving your testimony in court in front of a judge. In essence, they are trying to convince a judge to order that you do not have a genuine issue for trial, i.e., you have no defense, you are stalling, you cannot negate their claims for establishing that the children are in need of protection and how they believe they can properly protect the child. If a judge is persuaded by the CAS’s argument and grants their motion for summary judgment, the matter is over, and there will be no trial. It is quite likely that your chance to defend yourself will have come and gone, and you may not see your children again. Even if the CAS’ loses the motion, they will get another chance to make their case against you at trial, but at least you will now be prepared for trial – they will have shown you most, if not all, of their cards.
So, how do you defend the motion for summary judgment? This is your chance to put your best foot forward. In your affidavit, you will give them a concrete plan on how you have addressed and how you will address society’s real concerns. For example, if there is a claim about drug or alcohol use, you show them that you are clean and sober or are taking steps to address your consumption issues (seeking treatment, on a waiting list, receiving counseling, clean hair/urine tests, etc.). If the issue is that you are in a bad relationship, proof that you have ended the relationship, that you are seeking counseling for having been in that relationship, living with family/friends who the CAS approves of, etc. Showing the CAS, and the court, that you are taking the concerns seriously and maturely and responsibly will help you defend the allegations against you. The affidavit can be as long as needed, with as many supporting documents as needed, but they must be genuine, and they must be relevant.
On the other hand, if the CAS has these allegations and you are unable to show them, or a judge, that you are taking it seriously, but instead just blaming them, or others, for what has been alleged, this will not help you. If you take no steps to address the concerns, e.g., miss your access visits, deny any issues exist when there is evidence to suggest there are such concerns, you get arrested or re-arrested and held in custody for issues related to the CAS’ intervention, you fight with the social workers and file baseless complaints against them or the agency, then try as hard as you might, you and your lawyer will not likely convince a judge that you have a valid defense. If you also just try and file complaints against the CAS lawyer, your lawyer, or the judge, then eventually, a court will likely accept that you are not thinking of what is best for your children are just looking not to address the issues (rightly or wrongly).
I wish to be clear before I go on. In many cases, the CAS has gotten it all wrong and have been given the wrong information. But this is not a criminal case – you do not have the right to silence and make them prove their case without saying a word. You have to defend yourself at every stage. If they have misrepresented the truth, or that someone has lied about how you have treated your children, then you need to show the judge that you take such allegations seriously and that you can and will respond to prove such claims to be unbelievable effectively.
One of the tips I recommend that you can and should discuss with your lawyer is to make sure you have a copy of all of the CAS’s notes, records, documents, and letters involved in their case against you as soon as you can get it. This CAS “disclosure” is critical to know the case against you. You can help your lawyer by doing some of the groundwork and getting names, address, and contact information for people who can not only say good things about you but who can be witnesses and make statements to show that a judge should not believe some or all of the accusations made against you. This requires you to be constantly working with your lawyer, be ready to meet with them, and keep them aware of any change in your contact information. If you move or change our number or lose your phone or go to jail, and your lawyer cannot reach you, the court could make an order for summary judgment without you even defending yourself. And there is no guarantee that an appeal’s court would overturn that decision.
A judge could say, “you snooze, you lose” (although not as bluntly as that).