“Sections 101 and 102 of the CYFSA enumerate the orders available to the court where a finding in need of protection has been made and where the court is satisfied that intervention through a court order is necessary to protect the child in the future. Section 101(1) sets out the following options:
Supervision order
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- That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.
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Interim society care
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- That the child be placed in interim society care and custody for a specified period not exceeding 12 months.
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Extended society care
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- That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.
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Consecutive orders of interim society care and supervision
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- That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.
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Custody Order
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- That one or more persons be granted custody of the child, with the consent of the person or persons.
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Under sections 101(2), 101(3), and 101(4), the court must consider other factors, including whether there are any less disruptive alternatives or possibilities for extended family placement. The court must also enquire with respect to the efforts of the Society to assist the child or children before intervention. Those sections read as follows:
101(2) Court to inquire
In determining which order to make under subsection (1) of section 102, the court shall ask the parties what efforts the society or another person or entity has made to assist the child before intervention under this Part.
102(3) Less disruptive alternatives preferred
The court shall not make an order removing the child from the care of the person who had charge of the child immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential care and the assistance referred to in subsection (2), would be inadequate to protect the child.
101(4) Community Placement to be considered
Where the court decides that it is necessary to remove the child from the care of the person who had charge of the child immediately before intervention under this part, the court shall, before making an order under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbor, or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.
101(5) First Nations, Inuk, or Metis Child
Where the child referred to in subsection (4) is a First Nations, Inuk, or Metis child, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with a member of the child’s extended family if it is possible, or if it is not possible,
(a) In the case of a First Nations child, another First Nations family.
(b) In the case of an Inuk child, another Inuit family.
(c) In the case of a Metis child, another Metis family.
In Children’s Aid Society of Toronto v. L.(T.), 2010 ONSC 1376, at para. 25, the court set out the statutory pathway to be followed when determining disposition. In light of the new legislation, that test should be reformulated as follows:
(a) Determine whether it is in the child’s best interest to return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child’s best interests and include them in the order. If not, determine whether the disposition that is in the child’s best interests is interim society care or extended society care.
(b) If an interim society care would be in the child’s best interests, but the maximum time under section 122 of the Act has expired, determine whether an extension under section 122 (5) is available and in the child’s best interests. If so, extend the time and make an order for interim society care. If not, make an order for extended society care.
(c) If an extended society care order is to be made and a party has sought an access order, determine whether access is in the best interest of the child in view of the factors set out in section 74(3) and a consideration of whether the relationship between the child and the person who would have access is both meaningful and beneficial to the child. If the court deems appropriate, it may consider whether access would impair adoption. If access would not be in the best interest of the child, dismiss the claim for access.
(d) If access would be in the best interest of the child, make the access order containing appropriate terms and conditions.”