A 10-year-old girl has been in “legal limbo” for nearly half her life after
she was “wrongly apprehended” from her mother who had failed a flawed drug
test.
She wants to be adopted by her foster mother but “hopes and prays”
for contact with her parents.
Ontario Superior Court Justice Grant A. Campbell reveals how reliance on
discredited hair testing from the Hospital for Sick Children’s Motherisk
laboratory contributed to a "perfect storm" of "errors, incompetence . . . and
mistakes." (Nakita
Krucker / Toronto Star)
Her foster mother is ready to adopt, but not if there is contact with the
parents, who have been “consumed and trampled” by the child welfare system
yet continue to fight for the right to see their daughter.
This is the
heart-rending dilemma depicted in a scathing
Ontario Superior Court ruling that delivers a broad indictment of a
“broken” child welfare system. Justice Grant A. Campbell reveals how
reliance on discredited hair testing from the Hospital for Sick Children’s
Motherisk laboratory contributed to a “perfect storm” of “errors,
incompetence . . . and mistakes.” Throughout, the parents were “ignored,
demeaned and disbelieved,” while their child was shuffled between
placements.
So significant was the damage that Campbell included an unqualified
apology to the parents in his ruling, which he delivered orally in a
Kitchener court last week.
“It should not have happened. You should have been treated better,” he said
to the mother and father, identified by their initials, C.T. and J.B. “It
did and you weren’t, and for that, on behalf of the very system that
perpetrated this upon you, I apologize to you both.”
Read more:
Mothers decry lack of transparency in review of Motherisk lab
From apprehension to appeal, his ruling outlines the “failures of the
court process,” including a Children’s Aid Society that ignored the mother’s
claims of native heritage, which should have triggered special
considerations for her daughter’s placement; “incompetent” trial lawyers who
neglected to challenge the Motherisk tests; and a trial judge that held her
decision in reserve for nine months.
Privacy laws that shroud child protection proceedings make it difficult
to answer many questions about this case. But the broad facts, laid out in
judgments and other publicly available court documents, trace a complex
family history marked by long-standing involvement with children’s aid,
dating back to when the mother was a child herself.
Her daughter, born in 2007, was deemed to be in need of protection by
children’s aid in spring 2012. The concerns children’s aid cited
included: the mother’s history of drug abuse, admitted marijuana use and
involvement in prostitution; incidents of domestic violence between the
parents; the father’s recovery from opioid addiction; and both parents’
mental health struggles. The girl, then 5, was placed with her mother,
under the supervision of children’s aid.
That changed in fall 2012 when a hair-strand test performed on the
mother by Sick Kids’ Motherisk lab came back positive for cocaine.
“(The child) was immediately apprehended based entirely on that now
totally discredited drug testing conducted by Motherisk,” Campbell said.
After the mother failed another hair test for cocaine, children’s aid
applied for Crown wardship. The case dragged on for three-and-a-half
years until December 2015 — a passage of time Campbell said “is
reprehensible and cannot be justified or excused on any credible basis.”
At the same time, big problems emerged at the Motherisk lab. The
controversy started in late 2014 after the Star exposed questions about
the reliability of the lab’s hair-strand testing. The lab was Ontario’s
most trusted provider of drug and alcohol hair tests for use in child
protection proceedings. But by the time the Kitchener trial ended in
March 2015, the concerns raised by an ongoing provincial review and an
internal probe prompted the hospital to
suspend testing at Motherisk. Sick Kids
shut down the lab the following month.
Despite the mother’s “repeated” claims that Motherisk results were
wrong, her lawyer “ignored those assertions and took no steps whatsoever
to bring any motion before the court, or to get competing drug tests to
challenge the Motherisk drug tests,” Campbell said. (The mother’s
marijuana use was previously known to children’s aid and not in
dispute.)
Drug use was among many concerns children’s aid raised during the
trial. But “extensive attention” was given “to the circumstances and
unreliability of the Motherisk testing,” Campbell said. Yet there is “no
evidence” that any of the lawyers for the parents or the child, who was
represented by the Office of the Children’s Lawyer, made a motion to
have the child returned to the mother, or for any other placement, he
said.
“Basically, once Motherisk tests were received in and accepted, the
agency took the . . . position that the only reasonable result was for
Crown wardship and it passively acquiesced to the delays that ensued and
to which court contributed and exacerbated.
“The status quo created by the delays eventually dictated a reality that all
participants recognized, acknowledged and accepted,” he said.
In her decision, released Dec. 15, 2015, the trial judge sided with
children’s aid, issuing a “final order” to make the child a Crown ward with
no access.
She considered the Motherisk controversy and the independent review that
was underway, making reference to several hair-strand drug tests the lab
performed in this case. Because of “the concerns raised by the
investigation,” the judge said she could not rely on the tests “to establish
on their own the presence or absence of any drugs.” But she also noted that
when the child was taken, the mother had “not sought a screen from a
different laboratory” to challenge the Motherisk findings.
“It is not known what the ultimate findings by the independent review
will be,” she said.
That same day,
Justice Susan Lang submitted her report on Motherisk to the attorney
general, who released it Dec. 17. Lang found the lab fell “woefully short of
internationally recognized forensic standards,” and operated without
sufficient hospital oversight. It produced results that were “inadequate”
and “unreliable” for use in child and child custody cases, which has
“serious implications for the fairness of those proceedings,” she said.
The Kitchener case is among more than 500 “high-priority” child
protection files that have been reviewed by the Motherisk commission, which
was established on Lang’s recommendation to determine whether the flawed
hair tests were a key factor in the outcomes in individual cases.
In April 2016, commissioner Judith Beaman informed the mother that after
a “detailed examination” of the child’s court file, she found “no reasonable
basis related to the Motherisk hair testing to question the legal process or
the existing status quo of the child.”
The mother was among three women who applied for a judicial review of the
commission’s decisions, claiming the process lacked transparency and denied
the parents an opportunity to participate. A divisional court dismissed her
application as premature, because she had not applied to the commission for
reconsideration of its decision.
Commission lawyer Lorne Glass said the commission stands by its decision.
“There were many, many reasons why that child was in care and was made a
Crown ward,” he said. “What the Motherisk commission said was that the
Motherisk test results weren’t overly relied upon by the court.”
The mother’s new lawyer, Julie Kirkpatrick, who represented her in the
appeal, said she will not seek reconsideration of the commission’s decision
because her client “did not find the commission’s involvement to be helpful
in her case.”
After the trial judge’s ruling, the parents, who have not been able to
see their daughter in more than a year, initially sought to quash the
decision, but they abandoned their fight for custody, concluding it was in
their daughter’s best interests to stay with her foster mother.
In his decision, Justice Campbell expressed deep regret for what the
family endured, while upholding the trial judge’s Crown wardship order.
“As any informed observer of this entire unfortunate court process would
conclude, my conscience is shocked by the abuse of process and the lack of
procedural fairness,” he said. “But to set aside the decision and remit the
matter to another trial . . . would damage and threaten the child’s
stability even more.”
Campbell agreed that adoption is in the child’s best interests. But he
also found that contact with the parents, who share indigenous heritage,
would be both meaningful and beneficial to the child and overturned the “no
access” order.
Yet he said he is faced with a problematic reality: the foster mother has
“unequivocally” stated that she will not proceed with adoption if there is
contact. At the suggestion of the lawyers, he has made an openness order but
has stayed its enforcement, so that the parents, the child and the foster
mother may participate in a hearing, which he set to start in May.
The “pathway” proposed by the lawyers “would appear to offer (the child)
a chance, (albeit a slim one) to extract herself from this confusion, and
move towards permanency,” he said.
Alison Scott, executive director of Family and Children’s Services of the
Waterloo Region, the children’s aid that handled the case, declined to
comment on the specifics.
But she said the society will “take to heart all the considerations that
the court made about our role as a child welfare agency,” particularly as it
relates to First Nations families, which she acknowledged “is a large area
of development for us.”
Commentary by the Ottawa Mens Centre.
The application for leave to the Supreme Court of Canada failed as of August
2018.
The Supreme Court of Canada does not care about child protection or children's
rights. It is effectively condoning the fabrication of evidence and in turn,
condoning the never ending criminal conduct of Judges, who are former lawyers
for the Children's Aid Society.
Its a very dirty story of the most corrupt psychopathic child abusers in Canada,
the Judges who are former CAS lawyers who got to be judges after spending their
careers fabricating evidence knowing that they had a corrupt judge, most
probably a former CAS lawyer rubber stamping their decisions.
