An aunt and uncle are caring for their nephew, and they have been told by the children’s aid society (CAS) involved that they are considered a “Kin Placement” but there is no court order. What is this exactly? What is the legal authority for this placement? When does it end? How do you create a permanent plan for the future? The answer is: it depends on the pathway the CAS has chosen to facilitate this placement.
The term “kin” refers to one’s descendants and extended family. In the child welfare context, it refers to not only one’s extended family, but also that family’s community members. The term is not defined in the Child, Youth and Family Services Act, 2017 (CYFSA), Child, Youth and Family Services Act, 2017 but s. 94(5) states that prior to a court making an order that a child remain in care after having been brought to a place of safety, it must first consider if a relative or community member can care for a child. As a result, Kin Placements are alternatives to foster placements when a child, for protection purposes, cannot live with their family of origin.
Kin Placements permit a child to stay connected to their family, heritage, culture and traditions and to result in better long-term outcomes for children. [Note, there is a specific type of Kin Placement for Indigenous families called “Customary Care Agreements” that allows children’s aid societies to work directly with a family’s band to arrange for care of the child.] While there are no regulations in place that specifically govern Kin Placements, they were created and continue to be governed by Ministry Policy Directive, Policy directive: CW 004-06 – Kinship Service Standards Directive | Child protection service directives, forms and guidelines | ontario.ca. A policy directive is a formal direction issued by the Ministry that sets out it expects legislation, regulations or policy to be implemented. It does not have the force of lawand is administrative in nature.
What is the legal basis for a Kinship Placement? Officially, it is an “out-of-care” placement for children that can be made on both a voluntary and an involuntary basis. If the child is found to be unsafe with their current parent or caregiver, and time permits, the question of whether or not they have any “kin” that could care for their child while they address the protection concerns. The proposed kin must meet the Kinship Service Standards, which include a home assessment and a child welfare safety assessment.
Voluntary Placements
Voluntary placements mean that the caregiver/parents of a child have been given the opportunity to consider the placement with kin and have had legal advice on the issue (see s. 21 of the CYFSA), and have been able to provide their informed consent. However, a biological parent is often faced with the choice of having to agree to a Kinship Placement or risk having their child legally removed from their care and placed without their consent.
Children who are in Kinship Placements remain legally in the care of their parents unless the CAS has started a Protection Application and placed the child with the kin pursuant to a Supervision Order (see s. 102(1) of the CYFSA).
Supervision Orders -Non Voluntary Placements
If a child is placed with kin under CAS supervision, there is no time limitation on the length of time that that a Supervision Order can last. After a child has been placed with kin for a certain amount of time, the kin are considered Parties to a CAS Application (London and Middlesex CAS v. T.E. 2023 ONCA 149). There is no consensus on when kin are added as parties with some CAS adding kin as parties early on in the proceedings, and other waiting six months or more. Once a kin caregiver is a party to an Application, they present a permanent plan to care for the children and/or fully participate in the CAS Application when decisions are being made about the child in their care. Kin who are not added by the CAS as parties to the proceeding can bring their own motion to be added as parties pursuant to Rule 7(5) of The Family Law Rules.
The court can grant custody to the kin under s. 102 of the CYFSA, which is deemed to be a parenting order under s. 28 of the Children’s Law Reform Act (CLRA) Children's Law Reform Act Once this is done, the CAS usually closes its file, leaving the kin to deal with the previous caregiver or parent without the CAS’s assistance. The previous caregiver/parent can bring a Rule 15 Motion to Change the s. 102/28 order. The CAS is not a party to the Motion to Change, and the kin, parents and court are left to determine if a material change has occurred since the CAS obtained its s. 102 order.
It is important to note that formal neither voluntary nor involuntary Kin Placements result in an adoption order. There are rare situations where, after further training and assessment, the kin caregivers are deemed to be foster placements and the CAS obtains the most intrusive order possible, which is called an Order for Extended Society Care (ESC, formerly known as Crown wardship). An ESC order and adoptive placement are not reviewable by Motion to Change.
Potential Problems
Increasingly, CASs opt to work out of court with families. What happens when there is no Protection Application and the placement lasts an extended amount of time? A parent’s struggles may be such that it could take years to resolve. How then is a child or a kin family to create a permanent plan for the child’s future? What if the biological parent cannot be located to sign consents for medical treatment, school or travel?
If placements are made as out-of-court voluntary arrangements, they are made without any legal authority under the CYFSA. The result is a sort of legal limbo where the biological parents and kin are working “voluntarily”, but there is no legal pathway to solidify the placement of the child with kin or to enable the biological parent to seek a return of the child to their care.
Once a placement is no longer voluntary, the CAS should be starting a Protection Application based on the original concerns. However, there are situations where the CAS loses its ability to do so given the length of time the child has been with the kin with the tacit agreement of the biological parents, and thus cannot be said to be in need of protection under any part of s. 74 of the CYFSA. There are other situations where the Kin Placement is outside the CAS’s geographical boundaries (for example, the CAS is in Toronto, but the Kinship Placement is in Niagara). This means that the original CAS loses jurisdiction to start an application, and as the children are “safe” with kin, the CAS in the kin’s municipality also has no jurisdiction to start a Protection Application.
With no ongoing CYFSA Protection Application, there is nothing stopping kin caregivers from starting their own CLRA application and obtaining an order pursuant to s. 28 of the CLRA.
And what of the biological parents or former caregivers who thought they were working “voluntarily” with the CAS and agreeing to a less intrusive out-of-care placement? If they are not consistently working and communicating with the CAS, they may find that their once voluntary agreement has turned into a more permanent placement, and they are unable to challenge it in court unless they become respondents to a CLRA application.
Many CASs acknowledge the risk that voluntary placements create for families and children, and have strict internal procedures to ensure that all parties are aware of their legal rights prior to agreeing to the voluntary arrangements. Some do not. It is the latter that have the potential for creating future issues for families, kin caregivers and children.
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