FORMER ONTARIO MPP FRANK KLEES EXPLAINS "A DISTINCTION WITHOUT A DIFFERENCE.
You can hear former conservative MPP Frank Klees say in a video linked below the very reason the social worker act was introduced and became law in 1998 was to regulate the "children's aid societies."
I'M NOT A SOCIAL WORKER, I'M A CHILD PROTECTION WORKER!
https://youtu.be/SA1YyWO0RTQ?list=PLsYhw09i3If44rMBDuZQ0ztayzSQU35Fy
Frank Klees is a former politician in Ontario, Canada. He was a Progressive Conservative member of the Legislative Assembly of Ontario from 1995 to 2014. He was a cabinet minister in the governments of Mike Harris and Ernie Eves.
Social Work and Social Service Work Act, 1998, S.O. 1998, c. 31
https://www.ontario.ca/laws/statute/98s31
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"Child, Youth and Family Services Act, 2017 proclaimed in force."
The new regulation was updated to only require Local Directors of Children’s Aid Societies to be registered with the College.
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.
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.
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.
Submission-re-Proposed-Regulations-under-the-CYFSA-January-25-2018. OCSWSSW May 1, 2018
https://www.ocswssw.org/wp-content/uploads/2018/01/OCSWSSW-Submission-re-Proposed-Regulations-under-the-CYFSA-January-25-2018.pdf
http://www.ocswssw.org/resources/legislation-submissions/
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 practice@ocswssw.org.
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2019: There’s no rule on who can write assessments that ‘effectively decide’ if an Ontario parent loses their child. Experts say that must change
https://www.thestar.com/news/gta/2019/08/02/theres-no-rule-on-who-can-write-assessments-that-effectively-decide-if-an-ontario-parent-loses-their-child-experts-say-that-must-change.html
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2019: Province orders children’s aid societies to review credentials of experts used in child welfare cases
https://www.thestar.com/news/gta/2019/08/23/province-orders-childrens-aid-societies-to-review-credentials-of-experts-used-in-child-welfare-cases.html
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2019: Expert who gave more than 100 assessments in Ontario child protection cases lied about credentials for years, judge finds
https://www.thestar.com/news/gta/2019/07/31/expert-who-gave-more-than-100-assessments-in-ontario-child-protection-cases-lied-about-credentials-for-years-judge-finds.html
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2017: All of us can be harmed': Investigation reveals hundreds of Canadians have phoney degrees
A Marketplace investigation of the world's largest diploma mill has discovered many Canadians could be putting their health and well-being in the hands of nurses, engineers, counsellors and other professionals with phoney credentials.
https://www.cbc.ca/news/business/diploma-mills-marketplace-fake-degrees-1.4279513
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2010: Psychologist got degree from U.S. 'diploma mill'
A psychologist with the Durham Children’s Aid Society has pleaded guilty to professional misconduct for misrepresenting himself and for making multiple unqualified diagnoses of mental illness.
Mr. Carter’s credentials with the college still remain in question. On its website Mr. Carter is listed as qualified to practise clinical psychology. However Mr. Carter is a psychological associate and not a clinical psychologist, since the province requires clinical psychologists to obtain a doctoral degree.
Mr. Carter completed his master’s degree at the Ontario Institute for Studies in Education in 1978 and got a PhD in 1991 from California’s Pacific Western University, which the U.S. government in 2004 accused of being a “diploma mill.”
An investigation into Mr. Carter started in November 2008, when a Durham man lost custody of his granddaughter, now 11.
https://nationalpost.com/posted-toronto/psychologist-got-degree-from-u-s-diploma-mill
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Here are some facts and figures I think point to significant problems for parents affected by child welfare sector and the CAS in particular:
• There are over 5,000 child protection workers in Ontario (5160 AT LAST REPORT)
• The College regulates about 17,000 social workers and social service workers
• In Ontario, only 7% of College-registered social workers are employed by a CAS
• Only 4% of members of the Ontario Association of Social Workers work for a CAS
• Between 30% and 50% of Ontario’s child welfare workers do NOT hold a BSW
(is it any wonder "CUPE" is against professional registration?)
• Only 63% of direct service staff in CASs have a BSW or MSW (in 2012, it was 57%)
• Only 78% of direct service supervisors have a BSW or MSW (in 2012, it was 75.5%)
• 100% OF CHILD PROTECTION SOCIAL WORKERS ARE MEMBERS OF CUPE (in 2012, it was 100%)
• The 2013 OACAS Human Resources survey estimates that 70% of relevant CAS job classifications would qualify for registration with the College (so about 1500 CAS currently employed workers would be unable to register with the College)
• From 2002 to 2014, 41 child welfare employees who did not hold a BSW or MSW submitted equivalency applications to register as social workers; only 16 were successful and 25 were refused. (was the test to hard for them and cause for concern, are those 25 who couldn't pass the test still loose on the streets...?)
2016/UPDATED 2018: http://cupe2190.ca/wp-content/uploads/2016/11/SSWCC_CAS-letters-re-college-regulation_Nov.-2016.pdf
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Without the deterrents professional regulation provides what prevents child protection social workers from being or becoming a danger to children and their families?
The union representing child protection social workers is firmly opposed to oversight from a professional college and the Ministry of Children and Youth Services, which regulates and funds child protection, is so far staying out of it.
The report Towards Regulation notes that the “clearest path forward” would be for the provincial government to again legislate the necessity of professional regulation, which would be an appallingly heavy-handed move according to OACAS/Cupe.
IMPACT ON STAFF:
It is unfair and unjust that staff who are currently deemed qualified by the society to do their work, some of whom have decades of on-the-ground experience ruining lives, would suddenly and arbitrarily be deemed unqualified.
"If the employers (government) are moving forward with professional regulation, it’s likely they will bring this issue to the next round of collective bargaining so CUPE members (unqualified child protection social workers) will have to be prepared to fight."
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 TENS OF THOUSANDS OF FAMILIES THROUGH THE FAMILY COURTS WASN'T HEAVY-HANDED?
http://joincupe2190.ca/files/2015/10/Professional-regulation-at-childrens-aid-societies.pdf
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Harmful Impacts: The Reliance On Fake Scientific Sounding Tests, Fraudulent Experts And Do Nothing Family Lawyers In Child Protection.
https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/motherisk/
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CONSENT TO INTERCEPTION - CANADA.
Documenting the facts is not a crime...
Broadly speaking, Canadians can legally record their own conversations with other people, but not other people's' conversations that they are not involved in.
183.1 Where a private communication is originated by more than one person or is intended by the originator thereof to be received by more than one person, a consent to the interception thereof by any one of those persons is sufficient consent for the purposes of any provision of this Part. [1993, c.40, s.2.]
The Criminal Code, R.S.C. 1985, c. C-46 [Criminal Code] imposes a general prohibition on interception (recording) of private communications, but then provides an exception where one of the parties to the private communication consents to the interception of that communication. Thus, broadly speaking, Canadians can legally record their own conversations with other people, but not other people's conversations that they are not involved in.
Other legislation in Canada protects various privacy rights, but does not prevent Canadians from recording their own conversations with others.
http://www.legaltree.ca/node/908
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Under suspicion: Concerns about child welfare.
In 2015, the Ontario Human Rights Commission (OHRC) began a year-long consultation to learn more about the nature of profiling in Ontario. Our aim was to gather information to help us guide organizations, individuals and communities on how to identify, address and prevent profiling. We connected with people and organizations representing diverse perspectives. We conducted an online survey, analyzed cases (called applications) at the Human Rights Tribunal of Ontario that alleged profiling, held a policy dialogue consultation, and reviewed academic research. We conducted focus groups with Indigenous peoples and received written submissions. Overall, almost 1,650 individuals and organizations told us about their experiences or understanding of profiling in Ontario.
If you need legal help, contact the Human Rights Legal Support Centre at:
Toll Free: 1-866-625-5179
TTY Toll Free: 1-866-612-8627
Website: www.hrlsc.on.ca
http://www.ohrc.on.ca/en/under-suspicion-concerns-about-child-welfare
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CONSIDERING HOW CLOSELY THE CHILDREN'S AID SOCIETY WORKS WITH LAW THE GOVERNMENT, ENFORCEMENT AND THE COURTS - AND HOW OFTEN CHILD ARE HARMED OR WORSE IN ONTARIO'S CARE...
The Special Investigations Unit is the civilian oversight agency responsible for investigating circumstances involving law enforcement (and why not the super secretive powerful as god children's aid societies as well?) that have resulted in a death, serious injury, or allegations of sexual assault of a civilian in Ontario, Canada.
The mandate of the SIU is to maintain confidence in Ontario's services by assuring the public that official actions resulting in serious injury, death, or allegations of sexual assault are subjected to rigorous, independent investigations.Nov 1, 2019.
https://www.siu.on.ca/en/index.php
AND MAYBE IT'S TIME FOR THE GOVERNMENT TO ACCESS A DIFFERENT KIND OF CHILD WELFARE EXPERT?
See: Robert D. Hare, C.M. (born 1934 in Calgary, Alberta, Canada) is a researcher in the field of criminal psychology. He developed the Hare Psychopathy Checklist (PCL-Revised), used to assess cases of psychopathy. Hare advises the FBI's Child Abduction and Serial Murder Investigative Resources Center (CASMIRC) and consults for various British and North American prison services.
He describes psychopaths as 'social predators', while pointing out that most don't commit murder. One philosophical review described it as having a high moral tone yet tending towards sensationalism and graphic anecdotes, and as providing a useful summary of the assessment of psychopathy but ultimately avoiding the difficult questions regarding internal contradictions in the concept or how it should be classified.
http://www.psychology-criminalbehavior-law.com/2015/01/hare-psychopath/
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Motherisk Report: 13 OF 32 Recommendations to Prevent Children Who Don't Need To Be Placed In Care From Being Placed In Care Anyway.
Summary of Recommendations: Accessibility of Legal Aid funds.
8. Legal Aid Ontario should a. in authorizing disbursements to parents’ counsel related to expert evidence, consider the complexity of child protection cases and the miscarriages of justice that could result from failing to vigorously challenge expert evidence;
(IS THAT WHY FAMILY LAWYERS DON'T ASK TO SEE THEIR COURT DISCLOSURES BEFORE OF THE FAMILY COURT START MAKING LIFE ALTERING DECISIONS ON A PRIMA FACIE BASIS?)
b. expand its Big Case Management program to child protection cases; and
c. expand its Complex Case Rate policy to child protection counsel.
9. The Ministry of the Attorney General should ensure that the total funding available to Legal Aid Ontario is sufficient to enable the Recommendations in this Report to be implemented.
Specialty legal clinic for child protection
(SEE FLIC LEGAL CLINIC BELOW)
10. Legal Aid Ontario should establish an independent specialty legal clinic focused on child protection that could accept “hard to serve” clients, provide research and mentoring for private practitioners, engage in advocacy, and bring test case litigation to protect and enhance the rights of parents in child protection proceedings.
Disclosure
11. The Family Rules Committee should amend the Family Law Rules to require children’s aid societies to provide automatic, ongoing, thorough and timely disclosure to parents. Education for judges on gatekeeping role in child protection.
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 AFTER THE DAMAGE TO THE CHILD AND FAMILY HAS BEEN DONE.
“Hundreds of organizations that are recipients of large transfer payments from the government are not subject to the provincial or municipal Freedom of Information and Protection of Privacy Acts,” said the Commissioner, “which means they are not subject to public scrutiny.” Among the examples she cites are hospitals and Children’s Aid Societies. “Openness and transparency of all publicly funded bodies is essential – they should be publicly accountable.”
In her annual report for 2013 released on June 17 there is just one paragraph on children's aid on page 12:
In my 2004, 2009, and 2012 Annual Reports I recommended that Children’s Aid Societies, which provide services for some of our most vulnerable citizens – children and youth in government care, be brought under FIPPA. 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 Information and Privacy Commissioner is appointed by and reports to the Ontario Legislative Assembly, and is independent of the government of the day. The Commissioner's mandate includes overseeing the access and privacy provisions of the Freedom of Information and Protection of Privacy Act, the Municipal Freedom of Information and Protection of Privacy Act, and the Personal Health Information Protection Act, and commenting on other access and privacy issues.
http://www.theglobeandmail.com/news/national/beef-up-information-laws-ontario-privacy-czar-says/article1120573/
http://www.newswire.ca/news-releases/commissioner-cavoukian-calls-on-government-to-preserve-freedom-and-liberty-514463911.html
12. The National Judicial Institute, the Superior Court of Justice in Ontario, and the Ontario Court of Justice should enhance their efforts to provide education programs and resources on expert evidence in child protection proceedings. Education should emphasize the skills judges need in order to perform their gatekeeper function in the unique context of child protection.
Extension of Counselling Services
1. The Ministry of Children and Youth Services should make free counselling services available to all affected persons,10 whether children, youth, or adults, upon request, for three more years from the date the Commission ceased to offer services (January 15, 2018).
Ensuring the Reliability of Expert Evidence
Bodily samples
2. The Ministry of Children and Youth Services should direct children’s aid societies to ensure that all child protection workers meet the requirements for obtaining valid written consent, in accordance with s 4(2) of the Child and Family Services Act (s 21(2) of the Child, Youth and Family Services Act), in every situation where a parent is asked to provide a bodily sample.
The directive should require workers to document (why not video record?) the steps they took to obtain consent and should require workers to obtain confirmation signed by the parent acknowledging that the requirements for valid consent were met.
(SO DOES THIS MEAN THE UNREGISTERED UNQUALIFIED SOCIAL WORKERS WILL HAVE TO DOCUMENT THREATENING TO REMOVE CHILDREN FOR A LACK OF COOPERATION SIGNING EVERYTHING A WORKER WANTS PARENTS TO JUST SIGN?)
3. The Ontario government should amend the Child, Youth and Family Services Act to a. require courts to exclude evidence of tests of parents’ bodily samples unless the court is satisfied that the parent provided valid consent, or that the sample was obtained by order under the Act. The only exception should be situations where the introduction of the evidence is critical to protecting a child’s immediate safety. The provision should require the court to consider the parent’s right to privacy and security of the person before making this exception;
b. prohibit courts from admitting evidence of a person’s failure or refusal to voluntarily provide a bodily sample for testing where the evidence is being introduced in order to demonstrate that the person is less worthy of belief, is or has been engaging in substance use, or is being uncooperative; and
c. provide specific criteria for judicial orders that require a person to provide a bodily sample, with those criteria relating to the safety of a child.
10 We considered “affected persons” broadly to include the following:
• Children whose families were involved with CASs in part because of concerns arising from positive Motherisk hair testing, as well as their siblings, biological parents, adoptive parents, and foster parents;
• Family members, such as grandparents, aunts and uncles;
• Any other person who offered a plan for the children;
• Individuals caring for the children under a customary care agreement, kinship arrangement or a custody order; and
• The bands or communities of Indigenous children.
Harmful Impacts: The Reliance on Hair Testing in Child Protection
|xiv|
Expert reports
4. The Family Rules Committee should amend the Family Law Rules to
a. require that, where a party wishes to introduce medical or scientific test results in a proceeding, the results be accompanied by a report from an expert explaining the meaning of the test results and the underlying science behind the testing; and b. require the content of expert reports to include the requirements in Rule 52.2 of the Federal Courts Rules, and in addition, require these reports to include the known or possible impacts of gender, socioeconomic status, culture, race, and other factors in the testing or assessment of results, as well as an explanation of what steps, if any, the expert took to address these impacts.
(SO DOES THIS ONE MEAN THE CAS WILL HAVE TO SUPPLY THE COURT WITH TWO CROOKED EXPERTS NOW?)
Temporary proceedings
5. The Family Rules Committee should amend the Family Law Rules to require courts to assess the necessity for and reliability of any expert evidence through a voir dire before admitting that expert’s report into evidence on any motion in a child protection proceeding, except at the first appearance. Deviation from this requirement should only be permitted where the parent expressly acknowledges to the court that the findings of the expert are correct and the court is satisfied that the parent adequately understands the expert opinion and the Consequences of such an acknowledgement.
6. The Ontario government should amend the Child, Youth and Family Services Act to prohibit the admission of hearsay evidence of expert opinion, including test results and the interpretation of those results, at any stage of a child protection proceeding other than the first appearance.
Deviation from this requirement should only be permitted where the parent expressly acknowledges to the court that the findings of the expert are correct and the court is satisfied that the parent adequately understands the expert opinion and the consequences of such an acknowledgement.
Summary judgment motions
7. The Family Rules Committee should amend the Family Law Rule relating to summary judgment motions to a. permit only evidence that would be admissible at trial, and in particular, to prohibit hearsay evidence that does not meet the common law tests for admissibility;
b. require all expert evidence tendered at a summary judgment motion to comply with the Rule regarding experts and expert reports (as amended by these Recommendations);
c. require the court to conduct a voir dire before admitting any expert evidence; and
d. permit deviation from these requirements only where the parent expressly
acknowledges to the court that the findings of the expert are correct and the court is satisfied that the parent adequately understands the expert opinion and the consequences of such an acknowledgement.
Report of the Motherisk Commission
|xv|
Strengthening Families and Communities
Funding for band representatives
13. The federal government should immediately provide adequate funding for First Nations band representatives. The Ontario government should help to support their ongoing training needs.
The Ontario government should also move quickly, in consultation with Métis and Inuit peoples, to determine how representatives from these communities will be identified and funded to participate in child protection proceedings under the Child, Youth and Family Services Act.
http://motheriskcommission.ca/wp-content/uploads/Report-of-the-Motherisk-Commission.pdf
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Ontario Court of Appeal Confirms Ongoing “Gatekeeper” Function in Respect of Expert Evidence. Ryan Morris and Ravi Amarnath June 22, 2017.
In its recent decision in Bruff-Murphy v. Gunawardena (Bruff-Murphy), the Court of Appeal for Ontario (Court) set aside a jury award and ordered a new trial on the basis that the trial judge did not correctly apply the Supreme Court of Canada’s (SCC) test relating to the admission of expert evidence.
The Court’s decision in Bruff-Murphy provides valuable guidance as to the nature and extent of a court’s “gatekeeper” responsibility with respect to the admission of expert evidence both when the evidence is first sought to be admitted and thereafter, if prejudice emerges that was not apparent at the time of admission.
https://www.blakesbusinessclass.com/ontario-court-of-appeal-confirms-ongoing-gatekeeper-function-in-respect-of-expert-evidence/
https://nationalpost.com/opinion/christie-blatchford-getting-to-the-root-of-ontarios-family-law-mess
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OACPL Response to Canadian Lawyer Magazine
FEBRUARY 26, 2019. TAMMY LAW.
The Ontario Association of Child Protection Lawyers started in Spring 2017 in Windsor, Ontario with a group of Family Lawyers who saw an increased need to increase TO GET THEIR STORIES STRAIGHT AND COVER THEIR ASSES ...
OACPL
https://oacpl.org
https://www.tammylaw.ca/oacpl-response-to-canadian-lawyer-magazine/
https://www.canadianlawyermag.com/practice-areas/family/protecting-the-most-vulnerable/275829
https://99.79.133.205/wp-content/uploads/2019/02/2019-02-26-Letter-to-Canadian-Lawyer-Magazine.pdf
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ALLEGATIONS OF CHILD ABUSE IN THE CONTEXT OF PARENTAL SEPARATION: A DISCUSSION PAPER
2001-FCY-4E
3.1 Offences for False Allegations of Abuse.
https://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/2001_4/p3.html
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Motherisk Isn't The Only Symptom Of A Larger Problem In Child Protection Work.
Family Law Information Centre (FLIC)
Child poaching funding predator Karynn Von Cramon, Manager of Legal Services for FCSLLG is married to Perth's legal aid lawyer Andreas Von Cramon who runs a legal clinic giving free advice to families dealing with the CAS.
Legal Aid Ontario: Lake 88.1 “In Focus”interview with LAO’s Andreas Von Cramon and Nathalie Champagne Description: Transcript of April 8th, 2014 “In Focus” interview by Bob Perreault from Lake 88.1 FM in Perth and Andreas Von Cramon, Supervisory Duty Counsel Criminal/Family Law and Nathalie Champagne, District Area Director, Ottawa Region Date: April 8, 2014.
https://www.legalaid.on.ca/en/news/newsarchive/downloads/2014-04-08_In%20Focus%20interview.pdf
Supervisory duty counsel Andreas Von Cramon who practices in both Criminal and Family Law, has seen a trend lately wherein low income residents of Lanark, Leeds and Grenville are representing themselves in the court system rather than seeking advice through the Family Law Information Centre.
COULD IT BE BECAUSE HE DOESN'T GIVE GOOD ADVICE?
The reason may be that people are not aware of the services that are provided. His concern is that these services and resources can be of assistance to those going through trying times. - Doreen Barnes
https://www.insidehalton.com/news-story/4495905-family-law-services-expanded-in-tri-county-area/
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New expanded hours for family law services in Lanark, Leeds & Grenville legal clinic in Perth. Posted: Friday, March 28, 2014
Legal Aid Ontario (LAO) is helping the Lanark, Leeds & Grenville legal clinic provide more hours of support for financially eligible families, beginning April 1. This support will supplement the services already provided for families at the Family Law Information Centre (FLIC) in the Perth courthouse.
The expanded services for families at the clinic will include document preparation, assistance in applying for legal aid in addition to the legal advice offered at the FLIC. Independent legal advice is also available for clients who are using mediation to solve their family law matters.
Services at the clinic are by appointment only. To arrange an appointment, clients must first meet with the advice lawyer at the Perth FLIC to confirm that they require legal services and that they qualify for legal aid. LAO will be reviewing this initiative over the next six months and welcomes feedback from local community partners and stakeholders.
The expansion of family law services in Perth is one of a number of family law projects that LAO is undertaking, thanks to $30 million over four years in additional funding from the provincial government. LAO is investing the majority of this funding into sustainable improvements to family law programs and services.
Location:
Lanark, Leeds & Grenville Legal Clinic
10 Sunset Boulevard, Perth, Ontario, K7H 2Y2
Times: Every second Tuesday, from April 1
9 to 11 a.m. by appointment only
Appointments can be arranged with the advice lawyer at the Family Law Information Centre at the Perth courthouse
Thursdays, 1:30 to 4:30 p.m.
Questions: For questions or further information, please contact:
Feroneh Neil
Manager, Communications
Phone: 416-979-2352, ext.5103
Email: neilfer@lao.on.ca and/or media@lao.on.ca
https://www.legalaid.on.ca/en/news/newsarchive/1403-28_lanarkleedsgrenville.asp
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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 yet it isn't actually about the actual condition of the child or the child's welfare. It's about accusations, Cosmo quiz style parental risk assessments and fake experts and every time the society decides your a risk they get paid.
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). (Playing dumb) Why was I so shocked?
https://www.complexfamilylaw.com/blog/2015/01/cas-attitude-win-child-welfare-cases-at-all-costs.shtml
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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.
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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.
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.
http://www.tammylaw.ca/…/report-of-the-motherisk-commission/
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FLIC services are available in family courts across Ontario. At the FLIC you can find information about separation and divorce and related family law issues, family justice services, alternative forms of dispute resolution, local community resources and court processes.
Information and Referral Coordinators (IRCs) are available at designated times to help you understand your needs and to make referrals to appropriate services. IRCs can give you information about family mediation and other ways to solve your issues without going to court.
See the listing of FLIC offices throughout Ontario.
Each family court location has the following resources and services available: pamphlets and other publications on issues related to separation and divorce and child protection matters, including What You Should Know About Family Law in Ontario (available in 9 languages) the Ministry's Guide to Family Procedures information about legal services, the court process and court forms at designated times, an Advice Lawyer from Legal Aid Ontario who can provide summary legal advice at certain times an Information and Referral Coordinator who will provide information on alternative dispute resolution options, issues related to separation and divorce and community resources referrals to family mediation services connected with the court information about and scheduling for the Mandatory Information Program.
Feedback
Your feedback is important to the Ministry of the Attorney General. The ministry has established online, confidential client satisfaction surveys for Family Law Information Centres (FLICs), Family Mediation Services and the Mandatory Information Program (MIP). Each survey should take less than five minutes to complete and will help the ministry improve its services. Click on the appropriate link below to access the surveys:
Family Law Information Centres
Family Mediation Services
Mandatory Information Program (MIP)
https://www.attorneygeneral.jus.gov.on.ca/english/family/infoctr.php
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"[A]buse of process (is) the intentional use of legal process for an improper purpose incompatible with the lawful function of the process by one with an ulterior motive in doing so, and with resulting damages."
"In its broadest sense, abuse of process may be defined as misuse or perversion of regularly issued legal process for a purpose not justified by the nature of the process."
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Abuse of power, in the form of "malfeasance in office" or "official misconduct," is the commission of an unlawful act, done in an official capacity, which affects the performance of official duties. ... Abuse of power can also mean a person using the power they have for their own personal gain.
The act of using one's position of power in an abusive way. This can take many forms, such as taking advantage of someone, gaining access to information that shouldn't be accessible to the public, or just manipulating someone with the ability to punish them if they don't comply.
Covert and overt abuse of power: Covert: covert means that something is hidden, in the case of power, it would mean that someone is concealing their abuse of power from the public/other service users/other care workers. Covert abuse of power can happen in any setting.
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http://motheriskcommission.ca/wp-content/uploads/Report-of-the-Motherisk-Commission.pdf
https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/motherisk/
https://www.thestar.com/news/gta/2018/02/26/motherisk-tests-unfair-and-harmful-to-families-in-child-protection-cases.html
https://www.cbc.ca/news/health/motherrisk-commission-1.4552160
https://www.thestar.com/news/investigations/2018/11/27/parents-lose-second-bid-to-launch-class-action-suit-against-motherisk-over-flawed-hair-tests.html
https://www.cbc.ca/fifth/episodes/2017-2018/motherisk-tainted-tests-broken-families
https://torontosun.com/news/local-news/mandel-victims-of-bad-science-at-motherrisk
https://futurecontent.co/5-reasons-motherisk-scandal-shouldnt-happen/
https://blog.cansfordlabs.co.uk/5-reasons-why-the-motherisk-scandal-shouldnt-happen-again
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DO ONTARIO CHILDREN'S AID SOCIETY'S WORKERS FIT THE DEFINITION OF A PRIVATE INVESTIGATOR UNDER THE ACT AND SHOULD THEY BE ACCOUNTABLE TO AN INVESTIGATIVE CODE OF CONDUCT?
A private investigator is a person who performs work, for remuneration, that consists primarily of conducting investigations in order to provide information. 2005, c. 34, s. 2 (2).
The Private Security and Investigative Services Act, 2005 (PSISA) regulates the private security industry. The PSISA was proclaimed into force on August 23, 2007 to help professionalize the security industry, increase public safety and ensure practitioners receive proper training and are qualified to provide PROTECTIVE SERVICES. The PSISA and its regulations govern the way the private security industry operates in Ontario.
INVESTIGATOR ARE REQUIRED TO ADHERE TO AN INVESTIGATIVE CODE OF CONDUCT.
https://www.ontario.ca/laws/statute/05p34
HOW DOES THIS ACT NOT APPLY TO THE ONTARIO CHILDREN'S AID SOCIETY?
Does Ontario Require a License to be a Private Investigator?
Yes. In the province of Ontario anyone performing the activities of a private investigator is required to hold a valid Ontario Private Investigator License and be employed by a licensed private investigator/agency.
It is illegal to sell yourself as a Private Investigator without holding a license and working for a licensed agency. This does not stop scammers… In Ontario you will find a handful of unlicensed and shady agencies ...
IT'S NOT ABOUT THE STANDARDS, OR LEGISLATION, OR THE BUREAUCRACY - IT'S ABOUT ETHICS AND APPLICATION. IF YOUR GOING TO FIX WHAT'S WRONG WITH CHILD PROTECTION - START AT THE BEGINNING. FUNDAMENTAL JUSTICE.
IT'S NOT THE SYSTEM THAT LACKS ETHICS, MORALS AND ACCOUNTABILITY OR ACTS IN BAD FAITH - IT'S THE PEOPLE ENTRUSTED TO OVERSEE THE SYSTEM THAT LACK THOSE THINGS. IT'S NOT BAD SYSTEM THAT MAKES GOOD WORKERS BAD - IT'S BAD WORKERS THAT MAKE A SYSTEM THAT'S NEITHER GOOD NOR BAD, BAD.
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Parents Rights were ripped out by the roots...
“The testing was imposed on people who were among the poorest and most vulnerable members of our society, with scant regard for due process of their rights to privacy and bodily integrity,” the report states.
Without checks, balance or judicial oversight all of the parents who were tested were powerless to resist, disadvantaged parents told us that they submitted to the testing under duress, in fear of losing custody of or access to their children” only to lose access or custody anyway.
Respecting Procedural Safeguards:
There is a major power imbalance between an impoverished parent (we know that families of low socio-economic status are hugely overrepresented in the child welfare system) 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.
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.
It is unconscionable that these protections are available to accused persons, but were never considered applicable to parents at the mercy of child protection services.
There is nothing new about the commission's finding that many parents were explicitly or implicitly told that there would be negative consequences if they did not undergo hair testing. In fact, this type of coercive action continues to happen: parents are often given messages that if they do not consent, for example, to a finding that the child is in need of protection, that there will be negative consequences. For example, they may be prevented from bringing further motions, or — more damning in CAS work — labelled as being "uncooperative."
Tammy Law is a lawyer practicing in child protection, family and criminal law in Toronto. This column is part of CBC's Opinion section. For more information about this section, please read this editor's blog and our FAQ.
http://www.canada24news.com/opinion/the-motherisk-saga-is-a-symptom-of-a-larger-problem-in-child-protection-work/71858-news
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