Legal Information for Everyone: The LIFE Podcast

Family Law Series: Basic legal parameters for parents under Ontario's CYFSA

Episode Summary

This is the first episode in our Family Law Information series. It introduces the law that governs child protection in Ontario, the Child, Youth and Family Services Act (CYFSA) and basic concepts that might be helpful to families.

Episode Notes

Some specific questions that this episode discuss include:

Content warning: as this episode discusses processes with child protection and children's aid, it will discuss or hint at topics including child protection, physical, sexual and emotional harm and abuse of children. If you feel like you need additional support at any time, you can take a look at our resource list.

Resource List: https://drive.google.com/file/d/1gRzgYCElzTGm5C10R9ItS9cV82VDIncx/view?fbclid=IwAR04c1cqmXKSgraawXpTGjoGzEMG2qzcwyQIMaM7IYKQF0ZOMqwKUETrZLo

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Acknowledgements: Thank you to the staff at Legal Aid Ontario, the Hamilton-Kitchener District office for reviewing versions of this podcast script. Thank you to staff at the Catholic Children’s Aid Society of Hamilton for conversations and consultations on The Family Learning Project that ultimately helped to inform and clarify the content of this podcast. Thank you also to The Law Foundation of Ontario—while financially supported by The Law Foundation of Ontario Access to Justice Fund, the Social Planning & Research Council of Hamilton is solely responsible for all content.

Episode Transcription

Legal Information for Everyone: The LIFE Podcast

 

Family Law Episode 1: Basic Legal Parameters for Parents: Introducing Ontario’s Child, Youth and Family Services Act

This transcript is available in Arabic: http://www.sprc.hamilton.on.ca/wp-content/uploads/2020/05/Arabic-Translation-FLP-Ep1.pdf

Last Updated: 4 March 2020

Resource List: https://drive.google.com/file/d/1lMeFLuCD6xLtrDtRk2jAJWHvRdfze4wN/view?usp=sharing

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[Transcript Begins]

 

M: Welcome to Legal Information for Everyone: the LIFE Podcast. 

 

S: We’re your hosts, Sabrina and Merima.

 

M: While this podcast is financially supported by The Law Foundation of Ontario, the SPRC, Social Planning & Research Council of Hamilton, is solely responsible for all content. 

 

S: The information contained in this podcast is also not a substitute for legal advice and also may change as laws are updated. If you need a refresher on the difference between legal advice and legal information, please check out our first episode, which is titled Legal Information 101. We are not liable for changing information.

 

M: Integral to this podcast is understanding the implications of legal education for various communities across Hamilton. We would like to take this time to recognize that Hamilton is located on the Traditional Territories of the Haudenosaunee Confederacy and the Anishinaabe nations who have shared in and protected this land for thousands of years. 

 

S: In today’s episode, we will be discussing the question: what are the basic legal parameters for parents in Ontario as informed by Ontario’s Child, Youth and Family Services Act

 

S: As this episode discusses processes involved with child protection and children’s aid, it will inherently discuss or hint at topics that might be triggering or sensitive, including child protection, physical, sexual, and emotional harm and abuse of children. If you feel like you need additional support at any time, you can take a look at the resource list linked in the transcript for this episode.

 

M: So, thinking about the basic legal expectations of parents in Ontario seems like a big topic. Where can we start?

 

S: Yes, it’s definitely a big topic. A good place to start is by locating the topic in Canada’s broader legal system.

 

M: Okay. Now, in the introductory episode of this podcast series, Legal Information 101, we talked about the different areas of law in Canada and Ontario. Where does this topic fit?

 

S: Great question—there are many legal responsibilities of parents, and we won’t talk about all of them today. Instead, we will talk specifically about one piece of legislation in Ontario: The Child, Youth and Family Services Act. This piece of legislation is also referred to as the CYFSA or CY-FSAH. TheCYFSA is within an area of law called family law. There are many pieces of legislation that make up the rules for family law—the CYFSA is only one piece of that puzzle. Now, it’s important to note that the CYFSA only has jurisdiction in Ontario. This means that everything we talk about today only applies for families in Ontario.

 

M: So today we’re talking about a specific act within Ontario’s family law called the Child, Youth and Family Services Act.

 

S: Exactly. 

 

M: Okay. So why did you choose to think about the basic legal expectations of parents in Ontario through the lens of the Child, Youth and Family Services Act?

 

S: That’s a really great question. The basic answer is that the CYFSA sets the rules for child protection in Ontario.[1] What this means is that it defines specific cases where organizations authorized by the government of Ontario, called the Children’s Aid Societies, are legally responsible to step in to provide protection services to children.[2]

 

M: Why is this important for parents to know?

 

S: Well, the situations where the Children’s Aid Societies are legally required to step in focus on actions that the child’s parents or caregivers have done, called actions, or have not done, called omissions. [3]  So, it is important for families to be aware of what the expectations of them are. 

 

M: Okay, I see! Before we go any further, I need some clarification. Who are we talking about when we say “child”?

 

S: As of 2018, according to the CYFSA, a person in Ontario is considered a “child” until age 18. This means that the CYFSA applies to children under 18.[4] There are some exceptions where it applies beyond age 18.[5]

 

M: Okay, how is “parent” defined in the CYFSA?

 

S: The CYFSA defines “parent” as any person who has has lawful or legal custody of child. This definition also says that any person who is unavailable or unable to act are excluded, as the situation requires.[6] It’s important to note our conversation today also includes a broader definition than what might be traditionally thought of as a “parent”. For example, the Ontario Child Welfare Eligibility Spectrum, which we discuss later in this episode, refers to “caregivers” of children, which includes not only primary caregivers but also assigned caregivers, such as the child’s babysitter, and assumed caregivers, such as the child’s school bus driver.[7]

 

M: Okay. So let’s move on from what the Act defines a “child” and a “parent” to be. Now, what does the CYFSA actually talk about related to child protection? 

 

S: The CYFSA says a lot. But, there are two concepts that parents can begin with: Harm and risk of harm. Just to be clear, we are referring to harm or risk caused by things that a parent, or other caregiver, do or do not do to a child.

 

M: Thinking about the differences between these two terms, “harm” and “risk of harm”, it seems like harm refers to something that has already happened, while “risk of harm” can refer to something that might happen in the future.[8]

 

S: Exactly. So, it’s important to know that the law in Ontario isn’t just concerned with children who have already been harmed, but also if there is a possibility that a child could be harmed in the future. 

 

M: But isn’t there always a risk that children could get hurt everyday? I mean, they’re kids, after all. What type of risk and harm are you referring to?

 

S: That’s a great point—there is always a risk of anything happening. However, there are different levels of risk. For example, in Ontario, there’s a higher risk that it will snow in the winter. In the summer, there is a lower risk that it will snow. 

 

M: So what level of risk is the law concerned about?

 

S: The CYFSA, and by extension, the Children’s Aid Societies, are concerned when a child has been harmed, or when they are at likely risk of harm—this means when the risk of harm is so high that it is likely that the child will be harmed without intervention. [9]  What “harm” is defined as under the CYFSA will be touched on a little later—so keep that question in mind. 

 

M: I see—now who determines if a child has been harmed or is at likely risk of harm?

 

S: The CYFSA gives the CAS legal responsibility to make that distinction.[10] In future episodes, we will talk more about the process. 

 

M: Okay, that make sense. So, the CYFSA, and by extension, the CAS workers, set parameters for what happens if a child has been harmed or is at likely risk of harm. But what does this have to do with the parent?

 

S:  That’s a great question. As we’ve noted, the CYFSA says that a child is in need of protection if they have suffered harm because of an action that a parent takes, or an omission, which is a lack of action.

 

M: Okay. So the law says that if a child is harmed or is at likely risk of harm because of an action or lack of action by the parent, then…

 

S: …then the child may be considered “in need of protection”. If this is the case, or suspected to be the case, that’s where the CAS steps in…

 

M: Right. But back to the question of “harm” again: what does harm look like? Does this only refer to a child being physically hurt?

 

S: Physical harm is one of the categories. The law also protects children from, for example, sexual harm, emotional harm, and mental/developmental harm.[11] It’s important to note, however, that the CYFSA only gives broad definitions of harm. As we’ve noted, it gives legal responsibility to the Children’s Aid Societies to provide protection services. Part of this responsibility is defining in detail what classifies as a form of harm, which, in Ontario, is outlined in something called the Ontario Child Welfare Eligibility Spectrum.

 

M: The Eligibility Spectrum—that’s what you were mentioning earlier when we were discussing the definition of “caregiver”, right? Okay, so if someone has a copy of the Eligibility Spectrum, they can know exactly what the CAS would classify as harm or risk of harm?

 

S: Not exactly. The Eligibility Spectrum is meant as a guide for the Children’s Aid workers to determine harm and risk of harm. However, it is the job of the CAS worker to also take other factors into account, such as the age of the child in question, and if supportive factors are present that might mitigate, or lessen, risk. The worker uses the Eligibility Spectrum as a tool but ultimately can use their discretion in making a determination. It is still helpful to understand what the Eligibility Spectrum says, however, because it gives parents an understanding of the basic guide that the CAS workers use to make the initial classification of harm or likely risk of harm.[12] The Eligibility Spectrum is actually publically available—you can search for it online. 

 

M: Okay. That makes sense. Let’s think about harm and risk of harm, then. Can you give an example of an action that a parent or caregiver takes that might cause physical harm?

 

S: Sure. This can include an act that uses physical force, such as punching, shaking, slapping, biting, or kicking.[13] It can include actions that are taken that cause a child to become victimized or ill, such as if a child is punished by being locked out of their home, and then they are physically assaulted while locked out. Or if a child is denied water as a form of punishment and then becomes dehydrated. [14]

 

M: What about an omission, or lack of action that might cause physical harm?

 

S: An example of harm caused by an omission could be if a child gets hurt because of inadequate supervision.[15] Another example of harm caused by a lack of action, or omission, by a caregiver could be if there is broken glass in the home that is not fixed and a child hurts themselves. [16]

 

M: That’s right—the law recognizes physical harm that is caused by a parent’s action or omission. 

S: Yes. 

 

M: Okay, what about actions that might cause sexual harm?

 

S: It includes abusive sexual activity and exploitation. This can include if a parent touches a child in a sexual way, or asks the child to do so.[17]

 

M: What about an omission?

 

S: An example of sexual harm because of an omission by the parent or caregiver is if a child is not left with adequate supervision and as a result, the child is sexually assaulted.[18]

 

M: Now, the next category, if I remember, is emotional harm. 

 

S: Yes, and the CYFSA does actually provide a definition for what emotional harm is. The CYFSA says that emotional harm is demonstrated by severe anxiety, depression, withdrawal, self-destructive or aggressive behaviour, and/or delayed development.[19]

 

M: It seems to me that any form of abuse—such as physical or sexual, for example—could cause emotional harm. 

 

S: That is true—emotional harm can underlie other types of maltreatment. However, the Eligibility Spectrum says that there are specific patterns of psychological maltreatment that can cause emotional harm.[20]

 

M: Can you give some examples of what you mean by patterns of psychological maltreatment?

 

S: Sure. It could include patterns of rejecting or degrading the child, such as shaming a child for showing emotion. Patterns of terrorizing the child, such as threatening violence against a child or their loved ones or objects. Patterns of isolating the child may also constitute emotional harm; for example, consistently denying the child opportunities to interact with peers or adults outside of the home. [21]

 

M: Okay. While it seems like some things are more obviously emotional harm, some seem a little bit less obvious. For example, for many reasons, some parents show emotion toward their children, while others don’t. Could not showing emotion toward your child be considered psychological maltreatment?

 

S: Yes. Under the Eligibility Spectrum, patterns of ignoring the child—such as interacting with the child only when absolutely necessary, or not expressing affection, caring and love for the child—could be considered psychological maltreatment. [22]

 

M: What about omissions? 

S: An example of an omission could be if a child was experiencing severe anxiety, and the parent did not connect them with adequate support, such as counselling.[23] Now, a few minutes ago you brought up the great point that there may be many reasons that a parent does not show the “expected” amount of emotion toward their child, or respond to a child’s emotion in a way that we consider “normal”.  Can you expand a bit on what you mean?

 

M: Well, for example, some parents may have underlying trauma themselves. Or, some parents may have been taught to parent in a different way that by showing less emotion to their child than what we consider to be “normal” through our Western view. 

 

S: Yes—that’s true. Part of the reason that all of this is so complex is that we know that parents may not have access to support for trauma that they themselves have experienced or continue to experience. We also know that families have many barriers, one of which is that our expectations of parents are very centered around what is considered “normal” in Ontario. For this and many other reasons, it’s important for parents to know what the law in Ontario expects of them, so that families can seek out support if needed. For example, some of the families that I have spoken with have wanted to work with someone within their community to talk through how to balance different cultural practices within Ontario’s Child, Youth and Family Services Act. This can mean, for example, talking about parenting practices that do not cause the types of harm that we’ve talked about today, and that still work for their family.

M: Okay. So today we’ve talked about Ontario’s Child, Youth and Family Services Act. Parents need to be aware that if they take actions or have lack of action (omission) which cause harm or likely risk of harm for their child, then Children’s Aid Societies have a legal responsibility to look into the situation and can take actions they deem necessary to protect the child.

 

S: Yes. And different forms of harm include physical, sexual, and emotional, for example. That means that parents must remember not to react in a way that causes these forms of harm or likely risk of this harm. This can be overwhelming, and families can connect with support in their communities to think about parenting plans or actions keeping Ontario’s CYFSA in mind.

 

M:  I’m left with a lot of questions, like what is the process when the Children’s Aid thinks that a child has been harmed or is at risk of likely harm? And how does Children’s Aid hear about these cases?

 

S: Those are really important questions; we’ll will be talking about them in our next episodes. So, stay tuned! We will also be looking at questions such as: how do racism, bias, and discrimination affect decisions made regarding the CYFSA? What are complex barriers and inequities that racialized and newcomer families face when trying to navigate the expectations of the CYFSA?

 

M: If you need immediate support, check out our list of resources linked below, or check out the end of Episode 1, Legal Information 101, to hear about them. If have specific questions about your situation, remember to contact a lawyer who has expertise in that area of law for legal advice. Thanks for listening. See you next time! 


End Notes

[1] Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1, s 74 

[2] Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1, s 35 

[3] Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1, s 74 

[4] Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1, s 2(1) 

[5] Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1, s 124 

[6] Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1, s 2(2) 

[7] (Eligibility Spectrum 14)

[8] (Eligibility Spectrum 15)

[9] (Eligibility Spectrum 15)

[10] Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1, s 35 

[11] Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1, s 74(2) 

[12] (Eligibility Spectrum 2)

[13] (Eligibility Spectrum 17-21)

[14] (Eligibility Spectrum 22-25)

[15] (Eligibility Spectrum 39-43

[16] (Eligibility Spectrum 44-48)

[17] (Eligibility Spectrum 26-29)

[18] (Eligibility Spectrum 39-43)

[19] Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1, s 74(2) 

[20] (Eligibility Spectrum 59-60)

[21] (Eligibility Spectrum 59-60)

[22] (Eligibility Spectrum 59-60)

[23] (Eligibility Spectrum 58-63)