The very keen may have noted that one of the first decisions under the new Child, Youth and Family Services Act, technically a pair of decisions rendered together by Justice Sherr, made immediate use of the changes in language and intention of the law to require written specifics from the relevant Society.
The exceptionally keen may have seen the update on one of those two files, in which Justice Sherr doubled down on his intentions and expectations and summarized them:
[2] The court set out that as early as practicable in a case a Children’s Aid Society should be doing the following:
a) It should be providing timely and ongoing file disclosure to counsel for the parties and counsel for the children so that they can meaningfully participate, if they choose to do so, in a discussion about what services for the children and their family will best meet the purposes of subsection 1 (2) of the Act.
b) It should be assessing the strengths of the children and their family in order to determine what services can be provided to them that will build on those strengths.
c) It should be giving the children, where appropriate, and their family the opportunity to have input into what services should be provided to them, in a manner that best meet the purposes set out in subsection 1 (2) of the Act.
d) It should be providing a clear list of expectations for the children’s family about what they need to do to have the children returned to them. This can be set out in a letter.
Children’s Aid Society of Toronto v. K.D., 2018 ONCJ 404 (CanLII), <http://canlii.ca/t/hsjr8>
These cases form a model for one method of how to use the CYFSA to move cases forward. These options–seeking disclosure, strength-based assessments, giving input into services, and expecting clear, reasonably fixed lists of expectations–are not new. Savvy child-protection counsel have been using them, or attempting to use them, under the CFSA for many years.
However, where counsel faces more recalcitrant Society personnel from time to time, the growing body of caselaw of this type under the CYFSA provides a strong basis to seek orders like those made by Justice Sherr.
It is key in so many cases for there to be productive, even if not positive, communication between Society and parent. This is true from the perspective of parent’s counsel but also as children’s counsel; there is no benefit to any part of the family from an inability for the Society to hear parental concerns, or an inability for the parent to hear Society concerns. These often flow both ways. Frustrated, frightened, and defensive parents do not put on their best showing, leading to suspicious, sometimes patronizing, often defensive caseworkers. The cycle is difficult to break, and counsel can play a major role in helping each see the other’s perspective.
Where communication is quite poor, requests for written lists of expectations may be a good first step; the lawyer can, in private, walk the client through such a list and help brainstorm, without the pressure of a Society presence in the room.
Where there has already been some movement–or, sometimes, when movement has fully stalled and nothing else seems to be working–the best bet is often a meeting. These have various names in various jurisdictions and even between individuals at a Society: legal planning meetings, Family Group meetings, etc. The important aspect is simply getting the necessary players in a room, and giving the family space to feel they are being heard.
A good facilitator makes the difference between a productive meeting that puts the family on a path to reunification, and a meeting that simply deepens the divisions and distrust between family and Society. If a good facilitator does not seem to be present, counsel may want to take on that role. This is particularly true for children’s counsel, but it can be done effectively by parent’s counsel; even from a partisan perspective, restating and reframing the statements of persons in the meeting to make sure people are actually being heard is a way of advocating for your client. You ensure that your client’s perspective is actually being considered, and you make sure your client has the opportunity to fully understand the Society’s (and others’) points.
Where you are unsuccessful in getting meetings scheduled or lists of expectations provided, use the court: seek settlement conferences or even case conferences. Ask for case management. Point out your requests for meetings or written expectations to the court, and seek orders like those in the Sherr judgments above.
Regardless of your method, if you’re trying to keep your client’s case moving forward, the CYFSA gives you new avenues to do so, to complement the old standards.