Respecting The Canadian Constitution And Our Procedural Safeguards..
Author's Video Note:
There is a major power imbalance between an impoverished parent (we know that families of low socio-economic status are hugely over-represented in the child welfare system and race has little to do with it) and a state agency. To guard against such an imbalance, it is critical that our legal system respect the time-tested procedural safeguards developed to specifically ensure that the disadvantaged party is treated fairly.
Yet according to the Motherisk report, these safeguards were ignored. The report describes a litany of procedural injustices perpetrated on parents: parents were pressured to consent to testing; were not informed of their right to reject testing; they had adverse inferences drawn against them when they rejected testing; they were required to prove the unreliability of testing instead of the other way around; and they were refused the right to cross-examine Motherisk "experts" at summary judgment motions.
Removal from the home — permanent removal — is not supposed to be a move taken lightly. The report goes over the legal principles, laying out that it should be a last resort. It is the “capital punishment” of child protection, according to one citation, absolutely devastating to parents, and for children it is “often the beginning of a life sentence.”
Yet in the cases reviewed here, it is imposed, often apparently cavalierly and without even a trial, for reasons that amount to a punishment for being poor.
The Charter of Rights and Freedoms guarantees procedural fairness when the state interferes with fundamental personal rights, such as the right by parents to care for their children. Ironically enough, the issue of taking body samples (such as hair for testing) without proper consent for the purpose of criminal investigations was found to be an infringement of the Charter 20 years ago by the Supreme Court.
The problems detailed in the report’s 278 pages are too numerous to go into in detail. They document the many problems with the SickKids lab’s testing and with the child protection system’s overreliance on those results. The hair testing process produced inconsistent and untrustworthy results despite being perceived as carrying the unimpeachable weight of scientific authority. That much we pretty much knew because of earlier reporting, though the detailed breakdown of it and the specific case references make the injustice of it sickeningly vivid.
Former Privacy Commissioner Ann Cavoukian wrote:
“I am disheartened by the complete lack of action to ensure transparency and accountability by these organizations that received significant public funding. As part of the modernization of the Acts, I call on the government to finally address this glaring omission and ensure that Children’s Aid Societies are added to the list of institutions covered.”
The only oversight for the province’s children’s aid agencies comes from Ontario’s Ministry of Children and Youth Services.
"As the law stands now clients of the Ontario Children's Aid Society under Wynne's liberals are routinely denied a timely (often heavily censored) file disclosure before the court begins making decisions and the clients can not request files/disclosure under the Freedom of Information Act nor can censored information reviewed by the Privacy Commissioner of Ontario or the federal counter-part."
In her 2004 annual report, which was released on June 22, 2005, the Commissioner called for amendments that would bring virtually all organizations that are primarily funded by government dollars under FOI for the purposes of transparency and accountability: This would include the various children’s aid agencies in the Province of Ontario. Many parents and families complain about how difficult it is, if not impossible, to obtain information from children’s aid agencies. Many citizens complain that CAS agencies appear to operate under a veil of secrecy. Unlicensed and untrained CAS workers are making decisions which are literally destroying families, yet there is little or no accountability for their actions short of a lawsuit long after the damage has been done.
In leaked memo, Peel CAS staff asked to keep cases open to retain funding. By KATIE DAUBS Feature Writer Thu., March 14, 2013.
An internal memo from Peel Children’s Aid Society management asks staff not to close any ongoing cases during March, as part of a strategy to secure government funding.
According to the memo, when service volume is lower than projected, there is less money for the CAS.
PROCEDURAL SAFEGUARDS VS PROCEDURAL HURDLES.
If you think what happens behind closed doors in the family courts is anything like what happens in a public courtroom, your very very mistaken.
In a criminal court the accused gets a disclosure, the accused is asked if they wish to plead guilty or not and the crown must prove the evidence is reliable and the accused guilty.
In the family court the accused doesn't get a disclosure. The accused has an opportunity to prove they're not guilty before the judge rules against them only if the accused files all the proper paperwork informing the court and the CAS they wish to present evidence for their defense before the deadline to file it with the court has passed.
If the accused's lawyer says "I'll file for an extention to file the paperwork" that had to be file two weeks ago - the judge has already ruled against them.
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The rights enumerated under s. ... Other "Principles" are determined by the court and form the basis of the Canadian legal system.
Requirements of a Principle of Fundamental Justice
It "must be a legal principle about which there is sufficient societal consensus that it is fundamental to the way in which the legal system should fairly operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty, or security of the person."
The principle is "informed in part by the rules of natural justice and the concept of procedural fairness"
The PFJ do not require that an accused be entitled to the most favourable procedures possible.
Whether a particular procedure will conform to the PFJ is may require the judge "to balance the competing interests of the state and individual". What is required will depend on the context.
Established Principles of Fundamental Justice
Established Principles of Fundamental Justice include:
Right to Silence
Minimum Level of Mens Rea
Right to Full Answer and Defense
Is the Duty to Report after the Motherisk Report and now the Ontario Coroner's Report like having to follow an illegal order when not only are there ample reasonable grounds to suspect the children's aid society of massive wrong doing but extensive evidence and witness testimony yet to be heard?
What are reasonable grounds for suspicion?
How about the combined 276 recommendations to protect children in care made in the last public inquests into the deaths of children in care, the Motherisk report, the Ontario coroner's report, the Report on Professional Regulation and the OHRC's concerns about risk assessment standards and tools on top of the society's refusal to cooperate with the Ombudsman and the Ontario Privacy Commissioner besides refusing to give clients a file disclosure before the courts start making life altering decisions.
And why isn't the government applying their own standards (or the society's) to begin a child welfare investigation into the children's aid society's conduct and care of children using that lower threshold - according the society the process is standardized so even Doug Ford and the minister of children should be able to follow it..
It's not like the society hires qualified registered professionals to conduct a child welfare investigation, do they.. Anyone with a two year college course and 4 months of training can be a fully authorized child poaching funding predator..
The children’s aid societies feel it's their role to investigate reports and police the public using a lower thresold for reasonable grounds or warrants and a professional and standardized process that avoids all the procedural safeguards against abuses of power and authority guaranteed by the Constitution.
The person making the report should bring forward their concerns about children’s aid and the proper authorities will determine if there is a sufficient basis to warrant further assessment of the concerns about the children.
C.A.S. ATTITUDE: WIN CHILD WELFARE CASES AT ALL COSTS $$$.
By Gene C. Colman of Gene C. Colman Family Law Centre posted in Child Welfare on Thursday, January 1, 2015.
It should not be a matter of "win" or "lose" when it comes to Ontario child welfare law. Ontario's Child and Family Services Act tells us that the paramount purpose is to "promote the best interests, protection and well being of children." One might note the glaring lack of any reference to family. In fact, there is a paucity of references to family throughout the entire CFSA even though many judges recognize the importance of maintaining family whenever possible.
I had a recent experience with CAS counsel at court when representing a family unjustly caught up in the system. Our office had prepared a very persuasive and comprehensive response to the Society's Application. We attended at the mandated five day hearing that follows apprehensions from parental care. The CAS certainly had not expected such forcefulness; normally parents are so overwhelmed at this early stage that they are unable to mount an effective defence. Generally, the court will rubber stamp the CAS requests. We did not agree to just stand idly by at the first appearance and CAS counsel was surprised by our aggressive (yet fair) approach.
Our written material seemed to have persuaded the judge. He instructed the lawyers to prepare a consent endorsement along the lines that we were seeking (which of course included an immediate return of the children to parental care). As we were returning to the courtroom after preparing the consent, the experienced and respected CAS counsel turned to me and my clients and remarked: "This is the third time your lawyer has beaten me."
The CAS counsel's comment was made innocently enough and indeed was intended to be complimentary. But still I was shocked (but probably should not have been). Why was I so shocked?
THE ONTARIO CHILDREN'S AID SOCIETY HAS OFTEN CLAIM JUDGE'S PROVIDED IMPORTANT OVERSIGHT OF THE CHILD WELFARE PROCESS, BUT FOR WHO AND WHAT?
The Motherisk Commission details years of rights infringements by courts. "If the same problems were identified in criminal court, there would be a huge public outcry." Tammy Law.
Tammy Law's delusional thoughts, excuses, rationalizations and justifications for using the Motherisk test to justify denying parents due process and circumventing the Constitution, the Charter of Rights and the principles of fundamental Justice behind the closed doors of Ontario's family courts.
I want to be clear about what I think some of the fundamental problems are and how I think we can start to change this system. Because I am first and foremost a lawyer, my thoughts naturally focus on the role of lawyers in this mess. My thoughts are summarized as follows:
As lawyers, we need to recognize that good intentions are not enough. It is really easy to hide behind “the best interests of the child” and agree or acquiesce to all types of infringements of our clients’ basic human and Charter rights. This needs to stop. Lawyers need to start seeing their role in the context of defending our clients’ very real rights to human dignity and security of the person.
The culture of cooperation has gone too far. While I agree that it is very very important to work with the Children’s Aid Society to address their concerns, a line must be drawn when they demand cooperation that crosses the line. As a state agent, the Society has an obligation to ensure that it works in the most minimally intrusive way possible – respecting the client’s right to individual freedom while trying to ensure that its clients are served. This is a difficult job. Lawyers and courts should be there to ensure that the fine line is respected.
Society counsel need to understand that they have a public interest role. They should be providing advice to their clients in the context of being a public interest litigant. They have a duty to the court to be fair. This means that if unreliable evidence is being tendered (and there were many signs of this with respect to the Motherisk testing), they should be advising their clients about the unfairness of relying on it. Lawyers are and should be gatekeepers of evidence as much as courts are.
We need to be more vigilant. As noted in the report, our role as advocates is to raise every defense possible for our clients.
HOW ABOUT PRESENTING EVIDENCE THAT COUNTERS SWORN AFFIDAVITS WHEN CLIENTS HAVE IT IN ABUNDANCE - JUST SAYIN'..
Our clients are often extremely vulnerable, having lived lives that were challenged by multiple obstacles.
SO LAWYERS FAILING TO REPRESENT THEIR CLIENTS ISN'T JUST ANOTHER ONE OF THOSE OBSTACLES???
Many have made admirable attempts to parent their children. We need to be fearless in our advocacy for them. As a lawyer, I have experienced and seen derisive, sarcastic, or rude comments directed at myself and other lawyers who attempt to defend their clients. This needs to stop. It’s our client’s right – their children’s right – that they have a full defence.
Mary Ballantyne CEO of OACAS says, the next step is to have Ontario's estimated 5,160 child protection social workers registered and regulated by a professional college someday. Fifty-five per cent have a bachelor's (BSW) or master's degree in social work. A BSW is the minimum required to join the Ontario College of Social Workers and Social Service Workers, which is discussing the registration process with societies. Apr 03, 2016.
Social Work and Social Service Work Act, 1998, S.O. 1998, c. 31https://www.ontario.ca/laws/statute/98s31
OHRC Child Welfare Ontario: Concerns about risk assessment standards and tools.
Consultation participants raised concerns about bias in the tools and standards used to assess risk to children. Although they seem neutral, we heard that risk assessment standards and tools may lean towards more positive outcomes for White people. (see confirmation bias)
Social work researchers argue that risk assessment tools in Ontario are biased and perpetuate racism because they do not account for structural inequalities, such as racial discrimination, that may affect a child’s well-being. Parents may be blamed for these external factors, even though they are largely out of their control. We heard that relying on these tools, coupled with worker bias – which may be conscious or unconscious – may contribute to assumptions about racialized children and families being “inherently wrong or deficient.” This can lead to incorrect assumptions about the level of risk children are exposed to. (see confirmation bias)
Report on Professional Regulation at Children’s Aid Societies. May 2015.
The report argues regulation is necessary to improve public perception and confidence in the sector.
YET REFUSING TO SUBMIT TO PROFESSIONAL REGULATION FOR NEARLY TWO DECADES WHILE REFUSING TO COOPERATE WITH THE OMBUDSMAN AND THE PRIVACY COMMISSIONER AS WELL AS THE CHILD ADVOCATE ISN'T CONSIDERED AN IMPEDIMENT TO GAINING THE PUBLIC'S CONFIDENCE OR THE CAUSE OF THE LACK OF PUBLIC CONFIDENCE IN THE SOCIETY IN FIRST PLACE?
WHO WOULD BE AFFECTED ACCORDING TO CUPE..
The report, Towards regulation: Child protection and professional regulation in the province of Ontario, notes that the CAS workforce has expanded beyond social workers since 2000 to include child and youth workers and those with general degrees and diplomas.
A 2013 OACAS survey found that only 70% of relevant job classifications would qualify for registration with the College of Social Workers. CUPE members working as child protection workers could suddenly be deemed unqualified if they could not register with the College of Social Workers.
WHY IS MANDATORY COLLEGE REGISTRATION A PROBLEM?
1. SECRET INTERNAL REVIEW PROCESSES ALREADY LABEL ALL PARENTS DISGRUNTLED:
One of the central roles of a regulatory college is to discipline members. Children’s Aid Societies already have an internal complaint review panel as well as an arms length process through the Child and Family Services Review Board. Given that complaints processes are already in place, it is unclear what additional role college registration would provide. A third collegeled disciplinary review process would add another layer of unnecessary bureaucracy and have a serious impact on the workload for any staff involved.
ISN'T THAT CUTE, THEY WANT US TO THINK THE COLLEGE IS THE UNNECESSARY OF BUREAUCRACY...
The report also notes that the “clearest path forward” would be for the Provincial government to legislate the necessity of professional regulation, which would be an appallingly heavy-handed move.
AND DRAGGING TEN OF THOUSANDS OF FAMILIES THROUGH THE FAMILY COURTS TO MEET FUNDING GOALS EVERY YEAR ISN'T?
Since it began operations in 2000, the OCSWSSW has worked steadily to address the issue of child protection workers. Unfortunately, many CASs have been circumventing professional regulation of their staff by requiring that staff have social work education yet discouraging those same staff from registering with the OCSWSSW.
NOT ALL SOCIAL WORKERS ARE CREATED EQUAL.
Ontarians have a right to assume that, when they receive services that are provided by someone who is required to have a social work degree (or a social service work diploma) — whether those services are direct (such as those provided by a child protection worker or adoption worker) or indirect (such as those provided by a local director or supervisor) — that person is registered with, and accountable to, the OCSWSSW.
The new regulation was updated to only require Local Directors of Children’s Aid Societies to be registered with the College so it's up to all of us now to encourage the employees of the children's aid societies that enter family homes, schools and hospitals to be registered and their credentials checked before they are allowed to enter said places.
The majority of local directors, supervisors, child protection workers and adoption workers have social work or social service work education, yet fewer than 10% are registered with the OCSWSSW.
The absence of a requirement for CAS child protection workers to be registered with the College: ignores the public protection mandate of the Social Work and Social Service Work Act, 1998 (SWSSWA); avoids the fact that social workers and social service workers are regulated professions in Ontario and ignores the College’s important role in protecting the Ontario public from harm caused by incompetent, unqualified or unfit practitioners; allows CAS staff to operate outside the system of public protection and oversight that the Government has established through professional regulation; and fails to provide the assurance to all Ontarians that they are receiving services from CAS staff who are registered with, and accountable to, the College.
The existing regulations made under the CFSA predated the regulation of social work and social service work in Ontario and therefore their focus on the credential was understandable.
However, today a credential focus is neither reasonable nor defensible. Social work and social service work are regulated professions in Ontario.
Updating the regulations under the new CYFSA provides an important opportunity for the Government to protect the Ontario public from incompetent, unqualified and unfit professionals and to prevent a serious risk of harm to children and youth, as well as their families.
As Minister Coteau said in second reading debate of Bill 89, "protecting and supporting children and youth is not just an obligation, it is our moral imperative, our duty and our privilege—each and every one of us in this Legislature, our privilege—in shaping the future of this province."
The ministry sidestepped a question emailed by the Toronto Star on whether it would impose the requirement to register their 5160 plus employees with the College of Social Work, stating instead that it is funding the authorization process and leaving the society to police themselves with secret internal processes.
If you have any practice questions or concerns related to the new CYFSA, please contact the Professional Practice Department at 416-972-9882 or 1-877-828-9380 or email email@example.com.
Submission-re-Proposed-Regulations-under-the-CYFSA-January-25-2018. OCSWSSW May 1, 2018.