session_14_lecture_slides-16917-20230118.pdf

www.opcva.ca Family Law Act Provincial Statutes - Session #14 Version: BCT – Provincial Statutes | Jan 2023 PD © Queen's Printer for Ontario, 2018 CYFSA REVIEW 2 CYFSA REVIEW Child defined under section 2(1) of the Act means a person younger than18 Child in Need of Protection under section...

www.opcva.ca Family Law Act Provincial Statutes - Session #14 Version: BCT – Provincial Statutes | Jan 2023 PD © Queen's Printer for Ontario, 2018 CYFSA REVIEW 2 CYFSA REVIEW Child defined under section 2(1) of the Act means a person younger than18 Child in Need of Protection under section 74(2) of the Act Place of Safety – Section 74(1) (foster home, hospital, place designated a place of safety by Director, does not include a place of temporary detention, of open custody, or of secure custody) 3 CYFSA REVIEW Warrants to Apprehend A Child in Need of Protection Child in Care of CAS (“Left or Removed”) Runaways – Absent Without Leave (AWOL) from: - “Temporary Detention” (Remanded) - “Open Custody” (Sentenced) 4 CYFSA REVIEW • Offences –inflict abuse 136(2)(a) –fail to care / supervise 136(2)(b) –allow child to loiter 136(4) 5 1. The term “child” as defined under the Child, Youth and Family Services Act “ is a person? a) under the age of 16 years of age. b) who is 16 or 17 years of age. c) under 18 years of age. d) 17 or 18 years of age. 6 2. No parent of a child less than 16 years of age shall permit the child to loiter in a public place between the hours of? a) 11:00 p.m. & 6:00a.m. b) 12:30 a.m. & 6:00 a.m. c) 12:00 midnight & 5:00 a.m. d) 12:00 midnight & 6:00 a.m. 7 3. A “place of safety” under the Child, Youth And Family Services Act does not include? a) foster home; b) Hospital; c) place or one of a class of places designated by a Director; d) a place of secure custody defined in Part VI of the Act 8 4. A justice of the peace may issue a warrant authorizing a __________ to bring a child to a place of safety if satisfied on the basis of a child protection workers ___________ there are _________ to believe that the child is in need of protection and a less restrictive course of action is not available or will not protect the child adequately. a) child protection worker, sworn information, reasonable and probable grounds b) police officer, testimony, reasonable cause c) police officer, sworn information, reasonable and probable grounds d) child protection worker, testimony, suspicion 9 5. A child protection worker who believes on _______ that a child is in need of protection and there would be ___________ to the child’s health and safety may without a warrant bring the child to a _____________. a) sworn information, danger, hospital b) reasonable and probable grounds, substantial risk, place of safety c) reasonable and probable grounds, danger, place of secure custody d) sworn information, substantial risk, foster home 10 6. You receive information that a step-parent may have sexually molested a 15-year-old female. As a police officer you are obliged to? a) investigate and lay appropriate charges. b) Investigate, report the matter to the Children’s Aid Society and lay appropriate charges c) investigate and consult a crown attorney. d) notifying Children’s Aid Society and wait for their report. 11 7. You observe a 14-year child, who is known to police, in the downtown core without parental supervision at 1:00 a.m. According to the Child, Youth and Family Services Act you? a) may apprehend and take the child to a place of secure custody. b) may apprehend the child and take to them to a police station. c) may apprehend the child and take them home or to a place of safety. d) may apprehend the child and take them to a place of temporary secure custody. 12 8. A police officer is called to a school and has reasonable and probable grounds to believe a child is in need of protection and is at substantial risk. The officer may? a) obtain a warrant and enter the school to secure the child. b) use force, if necessary, enter the school without warrant and apprehend the child in need of protection. c) seek approval from the Children’s Aid Society and secure a warrant to enter the school. d) obtain a warrant and use as much force as necessary to retrieve the child. 13 9. Under the Child, Youth and Family Services Act, in order for a police officer to apprehend a child in need of protection they must, at minimum? a) see the child being abused. b) seek approval from a children’s aid worker to apprehend the child on reasonable and probable grounds. c) lay an information on reasonable and probable grounds. d) have reasonable and probable grounds to believe the child is in need of protection and whose safety and/or well being is at substantial risk. 14 Objectives • order for exclusive possession – Definitions • restraining order – Definitions • arrest authorities 15 Family Law Act Preamble “Whereas it is desirable to encourage and strengthen the role of the family; and whereas for that purpose it is necessary to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership; and whereas in support of such recognition it is necessary to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership, and to provide for other mutual obligations in family relationships, including the equitable sharing by parents of responsibility for their children…” 16 Family Law Act – Parts • (Preamble & Definitions) I. Family Property (assets/liabilities/pensions… etc.) II. *Matrimonial Home (def’n, obligations; order of exclusive possession; breach of order; and authority of P.O. to arrest w/o warrant. III. *Support Obligations (Restraining Orders – dated before vs. after Oct 15, 2009) 17 Video Family Law Act 18 19 Discussion Question #1 • What is the definition of “spouse” and “Matrimonial Home under the FLA? • Are there any exclusions?” 20 Spouse • either of two persons • married to each other –subsection 1(1) FLA 21 Matrimonial Home • property in which the person has interest • that is or was at separation • ordinarily occupied • by person and spouse • as their family residence subsection 18(1) FLA 22 Matrimonial Home - Exclusion • normally used for other than residential • matrimonial home is the only part that may be regarded as necessary to the use and enjoyment of the residence subsection 18(3) FLA 23 Discussion Question #2 • What is an “order of exclusive possession”? • What is the determining criteria? 24 Order for Exclusive Possession • regardless of ownership • court may on application order – preservation of matrimonial home – direct that one spouse be given exclusive possession – direct payments by spouses – direct contents to remain or be removed – authorize disposition / encumbrance of interest 25 24(1) FLA Order for Exclusive Possession • order may be temporary or interim 24(2) FLA • considerations – interests of children – existing orders – prenuptial agreement – financial ability of spouses – history/violence 24(3)(4) FLA 26 Discussion Question #3 • What authority exists for a P.O. when a spouse breaches an order of exclusive possession? 27 Arrest • • • • police officer R&PG person contravened order for exclusive possession subsection 24(6) FLA (charge under FLA, via Part III POA) 28 Discussion Question #4 • What is the max penalty for breaching an order of exclusive possession? 29 Contravene Order for Possession • Person who… • contravenes order for exclusive possession… • is liable to – 1st offence - $5,000 &/or three months – subsequent - $10,000 &/or 2 years subsection 24(5) FLA 30 Discussion Question #5 • What is restraining order for? And • What’s the criteria for an applicant to obtain a restraining order… and who can it apply to? 31 Restraining Order • interim (temporary) or final order • restraining • the applicant's spouse, former spouse, or a person who is cohabitating or has cohabitated with the applicant 32 Discussion Question #6 • What does it restrict the other party from doing? 33 Restraining Order (continued) 1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody. 2. Restraining the respondent from coming within a specified distance of one or more locations. 3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2. 4. Any other provision that the court considers appropriate. 34 Discussion Question #7 • What is the importance of the “transition date in how it affects your arrest authorities in dealing with a breach of a restraining order?” 35 Contravene Restraining Order • Person • contravenes restraining order made on or after October 15, 2009 • thereby disobeys court order • section 127 Criminal Code – dual procedure offence 36 Disobeying order of court – C.C. 127. (1) Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction. 37 Arrest • police officer • reasonable grounds • person has disobeyed court order • thereby committed indictable offence (s. 127 CC) • May arrest under section 495(1) C.C. 38 Contravene Restraining Order (Order Issued Prior to October 15, 2009) • Person who • contravenes restraining order made prior to October 15, 2009 • a police officer may arrest without warrant a person the police officer believes on reasonable and probable grounds to have contravened a restraining order. Sec 46(3) FLA 39 FLA Restraining Orders 40 FAMILY LAW ACT – (Dissolution of Marriages) B) “Restraining Orders” A) “Order of Exclusive Possession” (PERSONS) (PROPERTY) • Matrimonial Home • If a *spouse contravenes court order of Exclusive Possession…  P.O. may Arrest on R&PG under FLA  Proceed via POA - Part III • Includes “Cohabitated” • If breach conditions…  Arrest/Charge Disobey Court Order sec. 127 CC if order made after *Oct 15, 2009 **Note “Spouse” means: legally married 41 * (If before Oct 15,2009 – arrest under FLA via POA Part III) Assignment • You are dispatched to a domestic dispute at 322 Main St., Apartment 1A, Aylmer. Once there, you and your partner separate the complainant and her estranged husband and investigate the matter. • The complainant reports that she has been separated from her husband for 2 months and is seeking a divorce. During this time, he has been increasingly bothering her at work and home about marriage counseling. She produces a Restraining Order (current date, official seal and signed by family court judge), which states that Reginald Dawson, DOB:01Jun63 of 87 Harvey St. Aylmer is prohibited from communicating, directly or indirectly with the complainant. • Mr. Dawson is polite and cooperative. He explains that he just wants to save his marriage. 42 Assignment 1. Identify the offence(s). 2. Identify authorities (arrest, search, seizure). 3. Determine the most appropriate method for commencing charge(s). 43 Case #6 • Reginald Dawson • Disobey restraining order – communication with Mrs. Dawson – section 127 C.C. • Arrest authority – Yes, 495 C.C. • CC Information 44 Next Period Children’s Law Reform Act 45 46