Gene C. Colman Family Law Centre
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SUMMARY JUDGMENT, PROCEDURAL FAIRNESS AND CHILD WELFARE CASES - PART 2

In part 1 of this blog post, I wrote: "Justice J. deP. Wright has issued a brave appeal decision: R.(C) v. C.A.S. of the District of Thunder Bay (Jan. 30, 2013). He criticizes courts and agencies that run roughshod over the procedural rights of parents." Let's examine some different ideas to protect parents' procedural rights and how we might reform the system.

One can derive the impression from reading parts of Justice J. DeP Wright's decision that he would presumably do away with summary judgment motions in child welfare cases. But given that he gave the father in that case a partial judicial death sentence, I suppose that the learned justice would not go as far as I might have assumed from reading only some parts of his decision. In this blog post, you are going to hear Gene C. Colman rant and rave against the child welfare system. Colman would go much further than Justice J. DeP Wright.

You should not be able to sever the parent/child tie so easily. Parents are overwhelmed by the system. It grinds them up, demoralizes them, victimizes them, and it creates what can appear to be insurmountable, impossible and practical procedural road blocks at every juncture. In the case we are discussing here (R(C) v. C.A.S. of the District of Thunder Bay), the judge noted that it was the mom who first went to the C.A.S. asking for help when she was suffering post partum depression. The judge wrote: "It is important that self-reporting parents should be handled with the utmost restraint and fairness if we are to encourage young mothers to seek help for themselves and their children." (paragraph 53) I agree with the judge.

It might be very simple for judges and lawyers to tell litigants that they need to put their best foot forward on these s.j. motions. But how does a parent put his best foot forward when he lacks the educational, organizational and practical resources to properly prepare persuasive affidavits to counter the myriad of Children's Aid allegations? And how is the parent to know which C.A.S. allegations are truly relevant to the legal questions that a judge has to consider at a s.j. motion?

Those who have experience in the child welfare system know full well that the C.A.S. throws everything plus the kitchen sink at the parents. A lot of it is sadly quite inflammatory and not relevant. But a parent can't possibly be expected to sift out the chaff and to know what she has to respond to on a summary judgment motion. The rules governing summary judgment in these types of matters needs to be thoroughly re-examined. The Rules Committee has to come to grips with these outrageous violations and attacks on the integrity of the family. Here are some suggestions from Gene C. Colman:

1. A parent should, as a bare minimum, be able to legally require that her evidence be presented orally if she wishes. A parent should not be required to give her evidence by affidavit only.

2. A parent should, as a bare minimum, be allowed to cross examine society witnesses in court. The C.A.S. should be required to arrange for any witness's attendance in court.

3. As a bare minimum, a C.A.S. that brings a s.j. motion should have to present overwhelming evidence (not just balance of probabilities) in favour of crown wardship - no access such that there are no real issues for which a trial would be required.

4. And ALL of the C.A.S. evidence should be direct first hand evidence. The court should disallow all hearsay where that evidence might possibly be open to dispute.

5. Experts' reports should not be just attached as an exhibit to the worker's affidavit. The expert himself should have to present his evidence under oath in an affidavit. And if the parent wants to ask the expert questions, then the C.A.S. should be required to produce that expert in court at the C.A.S.'s cost.

6. And I'm just getting warmed up!

I don't think that my proposed reforms would do enough to provide adequate protection to parents but these suggestions would be better than nothing. And my proposed reforms would probably clog up the system. I have another idea - It would just be easier to require a trial in each and every case that is not resolved on consent. Already evidence can be presented by affidavits at trials. You have to use affidavits for s.j. motions. So, we may as well just turn these judicial death sentence exercises into trials where the parents would at least have a chance.

Thus, I actually believe that these S.J. motions in child protection proceedings should be abolished.

I know that there will always be some cases where no matter what resources the C.A.S. offers to the parents, the parents will never be up to adequately parenting their children and that is really sad. But these s.j. motions have caught up many decent parents who just needed a bit of a helping hand and the C.A.S. did not have the time, resources or inclination to adequately assist. The judge has to fill a gate keeper role. The judge on these motions (and at child welfare trials where parents are not represented by counsel) should be required to vigorously cross examine C.A.S. witnesses as to the efforts that have been made or not made to reunite kids with their parents. Not only do we need to rethink summary judgment motions, we need to rethink how our family child welfare system is victimizing kids and their parents.

We are not making sufficient efforts to keep families together. Children's Aid Societies have become far too interventionist, in my view. Yes, children who are truly "in need of protection" need to be protected from abusive and negligent parents. But we have to be much more careful as to where we draw the lines and where we write off parents as 'no good' versus putting in resources to help parents who just need some sensible assistance to become better parents.

BACK TO PART 1

2 Comments

Re: “I have another idea - It would just be easier to require a trial in each and every case that is not resolved on consent.”, agree fully. This really goes to the heart of the unresolved issue of state rights vs. parental rights.

However, even allowing for the current specious “best interests” standard under which parents have few rights, only responsibilities to paraphrase former Justice Minister Cauchon, the open question is what rights do children have not to be “arbitrarily” dispossessed of a parent. The Supreme Court has already recognized that the prospect of losing one’s child is a serious constitutional issue of human worth and dignity under section 7 of the Charter (at least for the mother) deserving of state legal funding. As children’s rights trump parental rights, it follows directly that the current “balance of probabilities” evidentiary standard is indeed too low to preserve the child’s right to self-worth and dignity.

There needs to be change to both laws about the relationship between the State and parents, and changes to procedures, i.e. family court rules. There needs to be law reform so that no parent loses a child without a clear standard being met, and the onus put on the State to prove it. That is part of what equal parenting (EP) reforms mean.
Even if the law states EP and parental rights and reasonable doubt proof, etc, if the procedure means that the state pays for the CAS lawyers and nothing for the parents, with a myriad of rules allowing trickiness and bullying by the state and quasi-state actors, then the process will still be unfair to parents and children.
Part of the problem, in my opinion is that the rules are made up by the legal profession with no input or consultation with the public and parents who are consequently exploited.
That is why the Canadian Equal Parenting Council call for reform of both law and practice.

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