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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A cooperative spirit helps co-parents avoid holiday conflicts

It can be challenging for divorced parents to work out a parenting schedule at the best of times, so unexpected last-minute scheduling conflicts during an already hectic holiday season can create additional stress for the entire family, says Toronto family lawyer Gary Gottlieb.

The emotional aspect of holiday celebrations contributes yet another complication, especially when a divorce is recent, and the children are still getting used to their parents’ separation.

But there are ways to handle scheduling conflicts during important holidays and other special occasions that will ease the stress and create new traditions that work for everyone involved, says Gottlieb.

Don’t sweat the small stuff

Figuring out where and how children will spend the holidays can be complicated, but there’s really no magic to it, he says.

“It’s all based on cooperation. My advice to my clients is don’t sweat the small stuff. A kid never objects to having two Christmases or two birthday parties.”

If you and your ex can spend the holiday together without tension or conflict, you might decide to share the special moments, writes Ann Gold in a recent column.

“However, if your children pick up on your discomfort, it will spoil the festivities for them. Despite your best intentions, your stress could add strain and tension to your kids’ experience. Sharing the holiday only works for parents who are quite comfortable with each other, and not in conflict,” says Gold, author of The Parent’s Guide to Birdnesting: A Child-centred Solution to Co-parenting During Separation and Divorce.

Common types of arrangements

Parents should strive to be creative in dividing time with their children on special occasions such as holidays and birthdays and try to plan months—even years—in advance. Each should think about what’s important to them and how they want things to unfold. For example, one parent could celebrate with the children on New Year’s Eve and the other could spend New Year’s Day with them.

With younger children, Gottlieb says, many parents opt for a schedule where the kids spend the morning with one and the afternoon with the other.

“For older children, the most popular schedule for this time of the year is Christmas Eve and Christmas morning with one parent and Christmas afternoon and Boxing Day with the other parent,” he says.

On the other hand, if a family likes to travel during the holidays, splitting the day won’t work, “so you need to decide whether you’re the type that stays in town all the time to be with family or whether you travel,” he says. Families that travel can look at the option of doing one week on, one week off and then alternate in even and odd years.

“Some people find it more important to celebrate Christmas Eve, some prefer Christmas morning, and some have mixed traditions.” If the parents come from different religious backgrounds, “I usually advise my clients just to go by their own traditions,” says Gottlieb.

Give advance notice for travel plans

If one parent plans to take the children out of the province for the holidays, they must give advance notice, including details of the trip, location, and contact and ticket information. COVID-19 is complicating things even further now since some parents are opposed to their children travelling at all because of government recommendations against it.

A well-organized parenting schedule normally has the Christmas break sorted out by the end of September or the beginning of October, but sometimes, one parent wants to change the existing agreement a week or two before the holidays.

Gottlieb says the courts will usually deal with these matters if there’s an existing specified schedule and one parent wants to intentionally breach it, but it must be proven to be urgent. Last-minute applications are often rejected if the parties can’t show that they attempted to deal with the matter earlier.

Parenting plans should be detailed

When a parenting schedule is very general, it leaves room for debate and conflict between the parents, Gottlieb stresses.

“Rather than stating that the kids will split time over Christmas, the plan should precisely spell out which days and hours apply to each parent,” he says.

Gottlieb recommends creating a very detailed schedule that covers dates, times, pick-ups, drop-offs, and locations. And it doesn’t have to be carved in stone.

“If you’re finding that a schedule is not working, you can always tweak it, on consent,” says Gottlieb, adding that flexibility and an ability to compromise can help the process immensely.

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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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