Legal counsel vital for families involved in CAS investigations

If a child is removed from their home by a Children’s Aid Society (CAS), parents or guardians should waste no time obtaining legal counsel, says Toronto child protection lawyer Gary Gottlieb.

“The removal of a child from the family home due to allegations of abuse or neglect is a frightening and stressful situation for any family. As a parent, knowing your rights and understanding the actions that you can take if your child has been placed in temporary care can improve the chances of having them returned home,” says Gottlieb, who frequently represents families in child protection matters.

Overview of a CAS investigation

In Ontario, Children’s Aid Societies are responsible for ensuring the protection and safety of children. In 2020-2021, CAS received more than 113,000 calls and referrals reporting children at risk, and of those, approximately 63,000 required investigations.

Gottlieb says that CAS investigations are usually triggered out of a concern for risk of harm from physical, emotional, or sexual abuse; neglect; or exposure to domestic violence.

“In some jurisdictions, such as Toronto, school truancy is also considered a child protection issue,” he adds.

How a CAS investigation works

If a CAS child protection worker determines that a report of concern warrants further investigation, they will often conduct an initial assessment within 24 hours.

When the CAS contacts a parent or guardian requesting an interview, Gottlieb says they should seek legal counsel immediately and ensure a lawyer is present during the meeting with the CAS.

“If you are First Nations, Inuit, or Métis, you may also have a person who represents your band with you,” he says.

During an investigation, a CAS worker will meet with the child, as well as with the parents or guardians and any other family members or caregivers they feel are appropriate, Gottlieb explains.

At this point, the worker may decide that the child does not need protection, so they will close the file.

However, Gottlieb says that if there are concerns, the CAS may start a court case that results in a supervision order, allowing them to come into your home to ensure compliance with conditions ordered by the court.

“This may include physician monitoring for mental health issues, clean drug and alcohol screens, compliance with therapy or twelve-step programs, or other court-ordered supports,” he says, adding that if the CAS worker thinks that there is a serious or immediate risk of harm to a child, they may take them from the home.

If children are taken into care

When a child is taken into temporary care, Gottlieb says the case must go before the courts within five days.

“If your child is removed from the home, it’s important to seek the counsel of a lawyer who has worked on child protection cases. They will be able to provide guidance and help you navigate the CAS process. Even if the CAS has only removed your child to a relative or friend's home, getting legal advice is an important first step in ensuring a successful outcome for the family,” he says.

Showing respect for the CAS worker, and being responsive to their instructions and recommendations will help to improve the chances of your child being returned home, Gottlieb says.

“At the same time, it is important to remember that the CAS worker is not your friend. Regardless of how warm and helpful they are, a child protection worker’s priority is to ensure the safety of your children.”

Orders for programming

Following an assessment, Gottlieb says the CAS will often make recommendations for services and programming for family members, such as counselling, 12-step meetings, anger management classes and the like.

“Most of the time, the CAS makes reasonable recommendations, however, mistakes can be made and the plans they put in place aren’t always realistic,” he says. “I have seen cases where people have been directed to participate in an impossible number of programs that they could not sustain.

“A child protection lawyer can review recommendations to ensure they are realistic and negotiate the terms on your behalf.”

Gottlieb says that while the CAS’s recommendations are important, at the end of the day, it is just one litigant in the case, and “what the court says matters most.”

Quality versus quantity of resources

Demonstrating stability and the desire to improve your family situation is the most effective way to boost your chances of a favourable successful outcome in a child protection case, Gottlieb says.

“Parents or guardians whose child is taken into care should do everything they can to get their resources in order. Speak to your child’s school and get them on board. Talk to your family doctor. Allow your lawyer to act as a quarterback to help you manage resources and ensure the conditions are fulfilled,” he says.

At the end of the day, Gottlieb says what’s most important is that the court sees the family as being proactive and taking steps to address the issues that brought it to the attention of the CAS.

“It is not the quantity of resources that matters so much as the quality of supports you have in place.”

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Three rules for creating a child-focused parenting plan

Adjusting to life after a separation or divorce is difficult for everyone in the family, but a well-drafted parenting plan can help minimize interparental conflict and provide children with stability, says Toronto family lawyer Gary Gottlieb.

“Conflict, disagreements and miscommunication can create a chasm between parents trying to devise a plan for how to raise their children. A solid parenting plan that’s rooted in the best interests of the children can ease the transition for everyone,” he says.

During a period of emotional upheaval and uncertainty, says Gottlieb, children are looking for answers to important questions:

• Who will I live with?

• Where will I go to school?

• Will I have to move?

• Where will each parent live?

• Where will we spend holidays?

• Will I still get to see my friends?

• Can I still do my favourite activities?

“Children need reassurance they will have a relationship with both parents after their parents split. They want to visualize where they will be on a given day or week, which can impact their activities and ability to connect with friends,” he says.

What is a parenting plan?

A parenting plan is a document outlining how parents will make decisions for the children, the time each one will spend with them, how they will share information and, in some cases, the protocol for handling disagreements. The plan should contain enough detail to provide clear expectations yet have enough flexibility to be realistic.

Following is a non-exhaustive list of the issues that can be addressed in a parenting plan:

• Parenting time arrangements — schedule of when each parent has the children

• Vacations, holidays and special days

• Relocation of a parent

• Health care

• Education

• Religion/spirituality

• Extra-curricular activities

• How exchanges of the children will be handled

• Schedule changes — how far ahead of time do parents need to propose changes?

• Contact orders — the time children spend in the care of someone other than parents, such as grandparents

• Family pets

Considerations for high-conflict parents

High-conflict couples most frequently fight about the details of visitation, parenting approaches and the exchange of information about their children. Given that many children are in fight-or-flight mode following their parent’s separation, it’s critical to minimize their exposure to ongoing conflict.

Children are often the casualties of high-conflict separation and divorce, and Gottlieb says agreeing on a parent plan often takes an extraordinary effort.

“High-conflict people look for loopholes, so it’s best to formulate a plan that minimizes parental contact when children are being dropped off or picked up,” he says.

After helping families draft parenting plans for more than 30 years, Gottlieb has three key guidelines:

Rule 1: Determine what’s truly best for your children

Pandemic restrictions aside, Gottlieb says families typically juggle busy schedules that revolve around work, school and social or extra-curricular activities.

“In most cases, it’s best for the children to spend as much time as possible with each parent. Before the divorce, your children may have participated in several sports, but now, you and your co-parent may only be able to commit to one.”

When parents are carving out plans for holiday schedules such as Christmas, he says, they should think about how that might change over time.

“When the kids are young and everyone is in the same city, scheduling is relatively straightforward. But what happens if your parenting plan stipulates that Mom always has the kids on Christmas day and Dad wants to take them on a Disney cruise one year?”

Rule 2: Be specific

The most important aspect of creating a parenting plan on which the family can rely is to be as specific as possible, Gottlieb stresses.

“Many lawyers make them very general, relying on their clients to figure out the details, but that’s a recipe for disaster,” he says. “In my experience, the less you leave to fate, the better. A good parenting plan considers the family’s current situation and anticipates changes as the years go on.”

For example, Gottlieb says, if the parents agree they will split time with the kids at Thanksgiving, the plan should precisely spell which days and hours apply to each parent.

For his clients, he often includes “ground rules” for how parents will communicate with each other as well as how they talk to their children about the other parent. But Gottlieb cautions that parenting plans only work if parents are willing to follow them.

“Nothing on a piece of paper is going to change behaviour. That has to come from a willingness to co-operate,” he says.

Rule 3: Modify plans as children age

A parenting plan for pre-school-age children will look quite different from one for teenagers with busy social schedules, says Gottlieb.

“The younger the kids are at the time of separation, the more frequently the plan will need to be updated. It’s also important to consider each child’s individual needs and interests.”

The pandemic forced modifications to parenting plans for many families around childcare needs, work schedules and other factors. Other triggers for updating the parenting plan include:

• Health — changes to the child’s health that require additional time and commitment

• Relocation — what happens if one parent wants to move?

• Criminal sanctions — if a parent has been arrested or convicted, the plan needs to be modified

Co-operate — or a judge will decide

Gottlieb says his firm has extensive experience drafting parenting plans that set families up for success following separation or divorce.

“This is your opportunity to carve a blueprint for the next phase of life that works for you, your co-parent and, most importantly, your children. No one knows your family better than you do, so, wherever possible, co-operate with your co-parent to create a plan that works for your children.

“Parents who can’t come to an agreement may find themselves settling their arrangement in court.”

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Parental alienation requires swift legal action

When a marriage ends, it’s not uncommon for one spouse to feel more anger over the disruption to the status quo and act out against the other partner, says Toronto family law lawyer Gary Gottlieb.

The retaliation frequently plays out in the form of a protracted divorce process, or if there are children, a bitter custody battle, he says.

Sometimes, one parent is so hostile that they persistently denigrate the other parent’s personality and parenting skills, convincing the child that they may be at risk with the other parent. This phenomenon is known as parental alienation, says Gottlieb, whose practice focuses on high-conflict family law and child protection matters.

“Parental alienation is a factor in about 15 per cent of my cases. It occurs when a child becomes estranged from one parent as the result of the psychological manipulation by the other,” he explains.

Alienators want to punish and get retribution for the breakup of the perfect cocoon they believed they were in, writes child psychiatrist Christine B.L. Adams.

“They are determined to have vengeance in the way that most upsets the other parent. They also want to ensure their children continue to deliver emotional care to them,” she says.

Mental health issues often at the root

In most cases, the alienator is the primary parent with sole or de facto custody of the children, Gottlieb explains.

“Often, the parent is suffering with some personality disorder, such as narcissistic personality disorder or generalized anxiety disorder,” he says. “Contrary to popular opinion, it occurs with both mothers and fathers.”

The negative behaviour patterns frequently begin even before the spouses separate, when the marriage is in the breakdown phase, Gottlieb adds.

“Months before the couple splits, the primary caregiver begins a campaign to alienate the other parent. They will become more possessive of the child and actively exclude the other parent. If the other parent tries to get involved in caregiving activities, the denigrating parent aims to convince the child s/he is useless,” he notes.

Often, the alienating parent convinces the children that the target parent doesn’t truly care about them or is only fighting for custody as a way to hurt the “real loving parent,” Gottlieb adds.

“The parent might say to the child, ‘your father is only trying to get custody so he won’t have to pay child support,’ or ‘your mother is only doing this to harass me; she doesn’t really love you,’” he says.

In extreme cases, Gottlieb says the parent will try to implant memories into the child as to how they were physically or sexually abused by the other parent, starting at an early age when the child has limited recollection.

Court focuses on best interests of the child

Parental alienation syndrome (PAS) is a term coined by the late forensic psychiatrist Richard Gardner in 1985 to describe a phenomenon he witnessed where children were being turned against one parent, usually as the result of a divorce or acrimonious custody battle.

Gardner described PAS as a “disorder that arises primarily in the context of child custody disputes. Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification. It is caused by a combination of a programming (brainwashing) parent’s indoctrinations and the child’s own contributions to the vilification of the targeted parent.”

Gottlieb says the concept of parental alienation has evolved over the years. Today, the courts will often only make a determination that a child has been alienated when they see cogent evidence of drastic severing of all ties between parent and child.

“For example, the courts have found it difficult to conclude that a child has been alienated when he or she still wants a relationship with the other parent,” he says.

In a 2019 case, the court ordered a custody switch of the children ­­–– from a mother to the father, who originally only had access to his two daughters –– after concluding the mother had “embarked upon a course of conduct since the birth of the children, and especially since separation, to attempt to eliminate the applicant from his own children’s lives.

“I accept the evidence of the clinician from the Office of the Children’s Lawyer that the respondent has intentionally attempted to alienate the children from the applicant’s life,” the judge wrote in his decision.

Gottlieb points out that the courts view access arrangements through the lens of the child’s bests interests. In cases where the child is reluctant to spend time with the target parent, the courts will often mandate reunification counselling, he adds.

“Sometimes, as alienation is deemed to be a child protection concern as ‘emotional harm,’ a child may be removed from the alienator’s care, placed into the care of the Children’s Aid Society or other kin home, while he or she undergoes reunification therapy. Isolation from the perpetrator can be a drastic but effective solution,” Gottlieb notes.

Signs of parental alienation

In the more than 33 years Gottlieb has been practising, he has observed some telltale signs to indicate parental alienation may be present:

• Setting the other parent up for failure. “When the children are going to the access parent for an overnight visit, the alienating parent often won’t send a change of clothes for them. S/he will ensure the children aren’t bathed. That puts stress on the access parent to jump through hoops to ensure the children are comfortable. It further adds to the discomfort of the children, which they connect to the access visit,” he says.

• Invoking the help of third parties. “Frequently, alienators will convince their community that the access parent is deficient. When the child experiences that everyone around them has a negative view of their parent, they come to believe it must be true. Public shaming through social media is also common,” Gottlieb says.

• Sabotaging extracurricular activities. “Alienating parents don’t take their children to the piano lesson or the baseball game on time. Sometimes they invent excuses to not take the child to activities and blame it on the other parent, saying, ‘Your father didn’t pay for it’ or ‘your mother didn’t get you the right equipment.’”

Legal remedies

It’s critical to act quickly if you and your child are experiencing parental alienation, Gottlieb says.

“Time is of the essence. The alienated parent should take immediate steps to get an access order enforced by the court,” he says. “The longer she or he waits, the more alienated the child becomes and the less open the child will be to having a positive relationship with the target parent.”

From a legal standpoint, third-party evidence is very important.

“The access parent can take steps to become more involved, for example, with the child’s teachers, by participating in parent council, taking the child to medical and dental appointments — to demonstrate they are a positive role model,” Gottlieb says.

“Offering counselling at the outset in writing — is critical, as well. Third-party evidence and evidence of a willingness to work with the child and the alienating parent (which is often resisted or sabotaged) lends credibility to the alienation argument and bolsters the targeted parent as an appropriate caregiver. Courts must have this evidence if you plan to succeed.”

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