In Ontario, the Children’s Aid Society is the institution responsible for the protection of children in Canada. The Children’s Aid Society is an independent, not for profit organization that is governed by a Board of Directors that is elected from individuals in the local community. In Ontario, the Children’s Aid Society is governed by the Child, Youth and Family Services Act (CYFSA) and designated by the Minister of Children, Community and Social Services, who also provides them with necessary funding. The duties of the Children’s Aid Society are outlined in s. 35(1) of the CYFSA and include investigating allegations that children may be in need of protection and taking the necessary steps to protect then. There are currently 49 different Children’s Aids Societies across Ontario, including 11 Indigenous societies.

In both family law and criminal law proceedings, the Children’s Aid Society has broad powers to ensure children are protected and to take steps to remove children if they feel as though they are not safe in their homes. In family court proceedings where the State believes a child is in need of protection, the Children’s Aid Society will be the party representing the State as the moving party in court. In criminal proceedings, the Children’s Aid Society may get involved if there have been allegations of child abuse or if there are allegations of other criminal offences being committed in the presence of a minor.

The Children’s Aid Society (CAS) has a positive obligation to investigate any and all allegations of abuse or neglect that they receive. The CAS does not conduct random checks on children which means if you have been contacted by CAS, someone has reported you to them. This could be either a member of the public, an educational institution, a health care professional, or the Courts. In situations where an adult individual is accused of sexual interference (sexually touching someone under the age of 16), invitation to sexual touching (inviting someone under the age of 16 to touch in a sexual manner), sexual exploitation (sexually touching someone under the age of 18 while in a position of authority over them), or child pornography related offences, CAS will be notified. Additionally, CAS may also be notified in cases where there are allegations of domestic violence that occurred in the presence of a minor.

Once the CAS has received a complaint, they will launch an investigation. CAS investigations will involve a Children’s Aid worker collecting as much information as possible from the complainant and then using that information to determine the next steps. If the child is in imminent danger, the Children’s Aid worker will act immediately to have the child removed from the home. In cases where the danger is not imminent, more information will be collected. Once the Children’s Aid Society is satisfied that a child is in danger, they have the statutory authority to apprehend the child and remove them to a place of safety until the threat is deemed to no longer exist. When a child has been removed from their home, the CAS must appear before a judge with the child within five days of the child’s apprehension.

When there have been allegations of sexual abuse in a home, the CAS will generally remove the child pending the outcome of the investigation. One of the specific grounds of finding a child “in need of protection” is that the child is at risk of being sexually abused or has already been sexually abused, and so such allegations are taken very serious by the CAS. When a parent is charged with a criminal offence involving their child or another child, they will likely be interviewed by a Children’s Aid worker as part of the investigation process. If sexual abuse is discovered or suspected, the CAS will refer the matter to the police and the suspect will be arrested. It is not uncommon for the police and the CAS to launch joint investigations. This is where criminal and family law can intersect and become complex and confusing.

From a family law perspective, it is generally in the best interests of a family to cooperate with a CAS investigation. First impressions are very important in a child protection investigation, and while there is no legal obligation for those being investigated to cooperate, investigators will almost always draw negative inferences from a family’s refusal or reluctance to cooperate. Further, a Children’s Aid worker could use the refusal to cooperate as a basis to remove the child(ren) from the home pending the outcome of the investigation.

From a criminal law perspective, an individual who has been charged with a sexually based offence in relation to a minor does have the absolute right to remain silent. The Children’s Aid Society may become involved in a criminal proceeding in one of two ways. The first is that they could become involved after criminal charges have already been laid. The second is where the Children’s Aid referred the matter to the police after conducting their own investigation, and the police laid charges as a result.

It is important to note that it is unlikely that statements made to the CAS will be introduced into criminal court proceedings. The only way such statements made by the accused could be introduced into a criminal proceeding is if the judge presiding over the matter is convinced that the statements were made voluntarily and to a person in a position of authority. As such, a statement made to the Children’s Aid Society will only be admissible in situations where Crown can prove beyond a reasonable doubt that the statements were made freely and voluntarily by the speaker to a person in a position of authority. In certain situations, CAS workers will be considered persons in positions of authority. If the Court is convinced that the CAS worker was a person in a position of authority, they will then employ the voluntariness test to determine whether the statements were made voluntarily.

The voluntariness test is concerned with determining whether or not the speaker of the statements had the ability to make a meaningful choice about whether or not to speak with the CAS worker when the statements were given. If the accused can demonstrate to the Court that they felt compelled to speak to the CAS worker when the statements were made, the statement will be inadmissible. Due to the serious family law implications that can result from refusing to speak to a CAS worker as outlined above, individuals being investigated by CAS often feel as though they are obliged to speak to the worker and may make incriminating statements that would hurt their criminal case. As such, it is important to consult experience legal counsel prior to speaking with a CAS worker whenever possible.

It should also be noted however, that in a recent case called R v. Nedelcu, the Supreme Court of Canada determined that compelled testimony may be admissible to impeach the accused persons credibility as long as the evidence being introduced is not incriminating. The Court also indicated that incriminating evidence that is compelled in a family law proceeding will never be admissible in a criminal proceeding. This means that incriminating information that came to light during the course of a family law proceeding will not be admissible against an accused in criminal court.

This complex intersection between family and criminal law can be difficult to navigate. Our Firm can assist you in making the correct decisions throughout the investigation process to ensure you do not make comments that could interfere negatively with your criminal proceedings.

416-DEFENCE | 416-333-3623