“The law to be applied during temporary care and custody hearings is set out in subsections 94(2), (4) and (5) of the Child, Youth and Family Services Act (the CYFSA):
94(2) where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,
a) Remain in or be returned to the care and custody of the person who had charge of the child immediately before the intervention under this Part;
b) Remain in or be returned to the care or custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;
c) Be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or
d) Remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.
The criteria to be considered is set out in subsection 94(4) and provides the following:
94(4) The court shall not make an order under clause (2)(c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2)(a) or (b).
Subsection 94(5) sets out the following:
94(5) Before making a temporary order for care and custody under clause (2)(d), the court shall consider whether it is in the child’s best interests to make an order under clause (2)(c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.
In CAS v. L.L. and J.G., 2019 ONSC 853, 20 R.F.L. (8th) 48, Justice Bennett sets out the s.94 analysis at paragraphs 24-32:
[24] At a temporary care and custody hearing, the onus is on the Society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondents, it is more probable than not that he or she will suffer harm. Further, the onus is on the Society to establish that the child cannot be adequately protected by terms or conditions of an interim supervision Order. See: Children’s Aid Society of Ottawa-Carleton v. T. 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273 (Ont. Sup. Ct.). simply stated, this is a two-part test that the Society has to meet.
[25] A court must choose the Order that is the least disruptive placement consistent with adequate protection of the child (subsection 1(2) of the Act): Children’s Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448 (CanLII).
[26] The degree of intrusiveness of the Society’s intervention and the interim protection ordered by the court should be proportional to the degree of risk: CCAS of Toronto v. J.O.., 2012 ONCJ 269 (CanLII).
[27] Subsection 94(10) of the act permits the Court to admit and act on evidence that the Court considers credible and trustworthy in the circumstance. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence: Family and Children’s Services v. R.O. , [2006] O.J. No. 969 (OCJ).
[28] In assessing risk, the court should consider the criminal history of parents, including evidence of violent conduct and the potential exposure of the children to violence: Children’s Aid Society of Algoma v. B.W. and R.M., 2002 CarswellOnt 5500 (OCJ).
[29] Exposure to a pattern of domestic violence has been accepted as creating a risk of emotional harm to children: Children’s Aid Society of Toronto v. M.S., [2010] O.J. No. 2876 (SCJ).
[30] The act gives priority to the person who had charge of the child prior to society intervention underpart three of the act (subsection 51 (2) of the Act). There can be more than one person in charge of the children. See: Children’s Aid Society of Toronto v. A.(S.) and R.(M.) 2008 ONCJ 348 (OCJ)(CanLII).
[31] The Divisional Court has held that a Society seeking an order for temporary Society care at this early stage of a case has only to demonstrate that it has reasonable grounds to believe that there is a protection risk for the child that justifies Society intervention: L.D. v. Durham Children’s Aid Society and R.L. and M.L., 2005 CanLII 63827, 21 R.F.L. (6th) 252, [2005] O.J. No. 5050 (Ont. Div. Ct.). The Burden on the Society at this stage does not go as high as showing that on the balance of probabilities there is an actual risk to the child in the parent’s care: CCAS of Toronto v. M.L.R. 2011 ONCJ 652 (CanLII).
[32] It is important not to judge a parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of childcare upon a young mother, provided that the standard used is not contrary to the child’s best interests: Children’s Aid Society of Toronto v. B.H.(R.), 2006 ONCJ 515 (CanLII).”