Deemed Custody Orders—S. 57.1 of the Child and Family Services Act

Since an amendment to the Child and Family Services Act in 2006, the court has been able to make custody orders as part of child protection proceedings in many cases.

Section 57.1 allows, among a few other useful items, a court presiding over a child-protection matter to make a custody/access order, if it is in the children’s best interests.

The central benefit of this is finality. Until s. 57.1 came into force, parties in CFSA proceedings had only two options for finality: Crown Wardship or withdrawal/termination of Society involvement. These are the two extremes of the range of options under the CFSA, and are not appropriate in many cases. Even where termination/withdrawal could be appropriate, it cannot be used where the situation would suddenly return to an unsafe situation because of an existing custody/access order.

Most obviously, consider a situation in which a child is apprehended from a parent with legal custody under a Children’s Law Reform Act order. If that parent cannot safely care for the child going forward, but the other parent can, Crown Wardship is certainly not appropriate. However, neither can the Society withdraw or terminate because the existing CLRA order would then take over, placing the child back at risk.

In the past, such cases have been stayed to allow the parents to reopen their domestic file and seek variation of the custody/access orders. While this functions adequately, it places a substantial burden on both the parents and the court. S. 57.1 allows that variation to take place under the CFSA heading, with the resulting order deemed to have been made under the CLRA (hence the common phrase “deemed custody order” to describe orders made under s. 57.1).

Parents with a Divorce Act custody or access order already in place at the commencement of the child protection matter are not eligible for a 57.1 order. This can be a frustration, especially for parents who are in child-protection court for multiple years. In order to get a final order, they have to return to Superior Court and get a variation—otherwise, they could be trapped in Status Review after Status Review, with no prospect of finality unless the matter is suitable for Crown Wardship or withdrawal/termination.

Additionally, orders for custody/access made by a Superior Court, even if under the CLRA (eg, by a unified court) cannot be varied under s. 57.1 by an Ontario Court of Justice.

Section 57.1 orders are available, where appropriate, to litigants who have either no custody/access orders or who have custody/access orders made under the CLRA, as long as those orders were not made by a Superior Court and being varied by an Ontario Court.

In many cases, pushing for a s. 57.1 order can help ensure finality and limit the length of CFSA proceedings. Rather than arguing summary judgments for supervision orders—leading to the need for a further summary judgment for a s. 57.1 order on Status Review, and potentially a further year in court, there is a prospect of finality at the Protection Application level. It is not the correct call in every case, but is an important tool for many.