We have previously commented upon procedural fairness in child welfare cases and the role that summary judgment motions play: Part 1 Part 2. We have called for reforms. The growing threat to procedural fairness principles has been further exacerbated by the Supreme Court of Canada decision, Combined Air when it may be applied to child welfare cases. It has already been applied to at least one family case - Jivraj v. Jivraj.
Allegations of alcohol abuse are often advanced to restrict a parent's access to his/her children in both child custody cases and in child welfare (children's aid society) cases. There are reliable measures available to challenge such allegations.
"We need very clear direction from Parliament to signal to judges and lawyers (and the public) that equal time should be the starting point."
There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal (Ontario Family Law Rules, R. 24(1)). There is, however, no such presumption for costs in a child protection case (Rule 24(2)). Does that mean that a successful parent can never obtain a costs order against a children's aid society? Let us delve a little further.
Child welfare agencies have a fairly light onus on them when it comes to analyzing whether or not they were justified in effecting an apprehension of children from their parents' care. (But at least there is some degree of onus on them.) Despite the fairly easy test that they must pass, there are still some occasions where the courts will step in and sanction a children's aid society. Cree Nation and Family Caring Agency v. L.(R.) is thankfully one of those cases.
In an important child custody case, Family Court Chief Justice, John Harper, addresses parental alienation almost without using those words, "parental alienation". Clearly, F. (A.) v. W. (J.) is an egregious example of the lengths that a vengeful and ill parent will go to alienate the children from a formerly loved parent.
Supervised access is a frequently advanced claim in child custody - access cases. Supervised access places the child and parent in an artificial and restricted atmosphere. Cases have maintained that supervised access interferes with the parent/child relationship. It is meant to be a temporary measure only. One judge gathers together precedents and reminds us of the applicable legal principles.
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.
Has a "Summary Judgment" motion in an Ontario family court resulted in you losing your child to the Children's Aid? Are you now facing a summary judgment motion? The increasing frequency of using this draconian and patently unfair tool to deprive children of their parents in these sorts of child custody cases has long troubled me. It's gratifying to see that at least one Ontario Superior Court Judge seems to agree with me.
Child custody cases are heart wrenching. Child custody cases with child protection authorities can be even worse. Do you know that kids were abused in native residential schools? Federal authorities and religious institutions are paying compensation for their negligent and even malevolent treatment foisted upon native children decades ago. With respect to overgrasping and overreaching children protection authorities (children's aid societies), how will history judge their actions?