"As of January 1, 2020 FOR THE FIRST TIME EVER IN ONTARIO, if you or your family have BEEN DRAGGED THROUGH THE FAMILY COURTS AND NOT received help or support from a Children’s Aid Society, group home, or other child and family service provider in Ontario, you have the right to see and ask for corrections to your personal information in your file... ISN'T THAT NICE OF THEM?
...You can ask to see and get a copy of your personal information in your file. It includes information about your history, your health or notes from talks you’ve had with a social worker or other professional. Your service provider must help you get this information if you ask."
REQUEST YOUR FILE TODAY! Get informed, you have rights!
:::
2019: 'The system is broken:' Many who can't afford lawyers don't qualify for legal aid.
CALGARY -- Legal experts say the justice system is failing Canada's working poor, many of whom are unable to afford lawyers and end up pleading guilty or representing themselves in court.
In Alberta, legal aid isn't available to anyone making over $20,000 a year. In Ontario, the threshold is $17,731. British Columbia's limit is $19,560, while it's slightly higher in Quebec at $22,750.
Ian Savage, president of the Calgary Criminal Defence Lawyers' Association, says hiring a lawyer for trial can range from $1,500 to $10,000, depending on the lawyer's experience.
"There's obviously an entire class who don't qualify for legal aid," he says.
"The working poor cannot afford a private lawyer, full stop."
Balfour Der, a veteran Calgary criminal defence lawyer, says many people make too much to qualify for legal aid, but not enough to really live on.
https://www.ctvnews.ca/canada/the-system-is-broken-many-can-t-afford-lawyers-don-t-qualify-for-legal-aid-1.4718055
:::
2012: Supreme Court judge warns of 'dangerous' flaws in the system.
Byline: KIRK MAKIN
Canada's newest Supreme Court judge has issued a clear call to action for governments and the judiciary to repair a justice system that has become slow, costly and opaque.
In a rare interview by a sitting Supreme Court judge, Mr. Justice Richard Wagner offered his candid perspective on what's ailing the system and his thoughts on how to improve it - prescriptions that include a more transparent process for appointing judges and a commitment to restoring the public's faith in a cornerstone of democracy.
Judge Wagner said that he would like to see a national summit that would bring together lawmakers and the judiciary from across the country to confront the fact that justice is quickly becoming beyond the reach of many Canadians.
"What we see is a common problem across the provinces," he told The Globe and Mail. "First of all, we should talk to each other."
Letting the court system continue to degenerate would have a steep price, he warned.
"If you don't make sure there is access to justice, it can create serious problems for democracy. It is dangerous ... We have to support our judicial system. Sometimes, I feel that people take that for granted."
Judge Wagner also said it may be time for the top judges in every province to undergo a public screening prior to their appointment, a process that is currently confined to the country's highest bench. The move, he contends, would enhance confidence in the courts by lifting the veil of secrecy that shrouds the selection of judges.
"It is a good thing for the country, for citizens and for the judge. It gives additional credibility, and it is a chance to present yourself."
He did not consider his own grilling by federal politicians intrusive or politically partisan.
"I might surprise you, but I liked the process," he said. "There is nothing to hide. I think a judge should follow the directions of society, and that means to explain to citizens what we do, how we do it and why we do it. I think it's fair and it's reasonable."
Judge Wagner cautioned, however, that it might not be practical to screen the scores of judges who are appointed to Superior Court benches each year, but it would be possible to start with the small number of justices named to each provincial Court of Appeal. Judge Wagner said the one thing that has surprised him since his appointment was the degree of warmth and comradeship on the Supreme Court bench.
"The welcome was extraordinary. I discovered incredible, nice, good people on the court; distinguished people with noble minds."
He said he considers the sentencing of criminal offenders as the most difficult task for a judge, although he shied away from discussing mandatory minimum sentences.
"I will say that I think discretion is always needed in sentencing," Judge Wagner said. "But I won't go any further than that."
He said he views himself as neither an activist judge, nor a conservative who is unwilling to challenge the laws.
"It may be a false debate," Judge Wagner said. "Parliament makes the law and the courts interpret it. Some could say there is a political side to judicial decisions, but I don't agree. Members of Parliament are elected and they are the ones who should make the law."
KIRK MAKIN
Globe & Mail [Toronto, Canada], 13 Dec. 2012
https://go.gale.com/ps/i.do?p=CPI&u=otta32126&id=GALE|A311949993&v=2.1&it=r&sid=CPI&asid=0f0b78db
:::
Access to Justice: A Societal Imperative.
Remarks of the Right Honourable Richard Wagner, P.C.
Chief Justice of Canada.
Thank you for that kind introduction. Distinguished judges, lawyers, colleagues, and friends: good morning. It’s a pleasure to be here today at the 7th National Pro Bono Conference. You’ve got an incredible line-up of panels, workshops, and discussions ahead. Thank you for being here and for doing this hard but necessary work.
It’s meaningful for me to be here in Vancouver, for a personal reason. When I was first appointed to the Supreme Court in 2012, I gave an interview to the Globe and Mail where I said that, “If you don't make sure there is access to justice, it can create serious problems for democracy.”Footnote1 This comment led to an invitation to give the keynote address at the first British Columbia Justice Summit in early 2013. It was my first major speech as a Supreme Court Justice. And here I am, back in Vancouver, more than five years later, which is wonderful. But what is not so wonderful is that we still face the same challenges, and I’m back here talking about some of the same issues. As we say in French, “plus ça change, plus c’est pareil”, the more things change, the more they stay the same.
People sometimes talk about access to justice as if there were a golden age when everyone could afford a lawyer, and everyone could go to court to solve their problems quickly and painlessly. I can tell you this was never the case. We have always faced challenges. Lawyers’ fees have always been expensive, court dockets have always been crowded, and procedures have always been slower than we’d like. We didn’t even have legal aid programs in all provinces and territories until the mid-1970s.Footnote2
Over the years, we have made progress. Organizations like the Access Pro Bono Society of British Columbia have stepped in to help fill a need. The Society has brought together lawyers, legal professionals, and students to provide quality legal services to people and organizations with limited means, for free. It’s an incredible accomplishment. Everyone who has been part of this should be very proud.
But I would be remiss if I didn’t acknowledge someone here today who has also done a lot to make justice more accessible to Canadians. My former colleague on the bench, the Honourable Thomas Cromwell, has not only shown us that there is life after the Supreme Court, but also that we really can find solutions to these challenges. His work with, and I quote, the Canadian Forum on Civil Justice’s Action Committee on Access to Justice in Civil and Family Matters – how did you fit that on a business card, Tom? – has not only led to some creative ideas, but also found practical ways to implement them. I know we’re all looking forward to hearing his insights as he moderates the first session.
Even though so much has been done, we’re all here today because we still have more to do.
Defining Access to Justice
Whenever I think about access to justice, a quote from Honoré de Balzac comes to mind. He said that, “Laws are spider webs through which the big flies pass and the little ones get caught.” To me, that image perfectly captures not just the inequities in our legal system, but the tangible effects those inequities have on people. While the system is meant to treat everyone equally, some people get stuck, and expend a great deal of time and energy trying to break free. Others breeze through to resolution, and move on with their lives. Giving people access to justice is like giving them the tools to free themselves from the spider’s web.
“Access to justice” can mean many things. Having the financial ability to get legal assistance when you need it. Being informed of your right to counsel when your liberty is at stake. Having courts that can resolve your problem on time. But it also means knowing what tools and services are available, and how to get to them. It means knowing your rights and knowing how our legal systems work. It can even mean seeing people like yourself represented in all parts of the legal system. And it means having confidence that the system will come to a just result – knowing you can respect it, and accept it, even if you don’t agree with it. Ultimately, it is about getting good justice for everyone, not perfect justice for a lucky few. It’s a democratic issue. It’s a human rights issue. It’s even an economic issue. Let me explain.
Access to Justice is a Democratic Issue
“Getting good justice for everyone” is a phrase I used a moment ago; I’m sure we could have a lively debate with the political scientists, but for me, as a jurist, those five small words might just capture the ultimate goal of a democratic state. We are very lucky to live in a stable and peaceful country. We trust that legal wrongs will be set right. Let’s never forget that the first victims of a tyrannical and oppressive state are always the judges and lawyers who stand up for people’s rights, and the media who report on them.
But the more difficult it becomes for people of a certain class, education, or income level to get justice, the more we put public confidence at risk. Look at the self-represented middle-class parent fighting for child custody. Look at the person accused of a minor crime whose legal aid lawyer struggles to competently do the work in the limited hours legal aid will pay for. Even with people like all of you working very hard to prevent it, every day our system fails someone.
Over time, this will diminish public confidence. In an extreme scenario, it could lead to social unrest. It’s not the kind of thing that will happen overnight – but it keeps me up at night.
Access to Justice is a Human Rights Issue
Even before we feel the impact at a societal level, access to justice first and foremost affects the individual. Under the Charter, everyone has the right to equal treatment under the law and equal benefit of the law. To deny access to justice is to deny people their dignity, to say that some people are worthy of justice and some aren’t.
Lack of access to justice reinforces existing inequities. An accused without legal representation may decide to plead guilty when he might have been acquitted or convicted of a lesser crime with a lawyer’s help. He may be wrongfully convicted. He may be sentenced to a longer prison term than he would have received had he gotten legal advice. Out on bail, he may not be given the support he needs to comply with his bail conditions. In the end, those who can’t access legal services may spend more time in jail. It has profound effects on people’s lives.
Access to Justice is an Economic Issue
Access to justice isn’t just about social stability or individual rights, as important as they are. It’s an economic driver, too. A person who is denied justice isn’t going to be a positive and productive member of society. He will have a harder time motivating himself to work for the future. He probably won’t be a good employee, or offer to volunteer his time, or make wise long-term choices. This affects all of us.
Similarly, people in business need to get commercial disputes settled quickly. The world economy is not going to wait on a lawsuit, and businesses risk getting left behind if they can’t act fast. While large businesses can hire lawyers or go to arbitration, small- and medium-sized ones may not have that luxury. In some cases, accessible justice can mean the difference between a going concern and a bankruptcy. When justice is not accessible, there is a real economic cost, on top of the social and human costs.
Barriers to Access
I’ve given a brief overview of what access to justice is, and why it’s important. Now comes the tricky question: why haven’t we been able to achieve it? And, ultimately, what can we do about it?
Costs
Well, the first barrier is obvious, and perhaps the top concern of many people in this room: cost. Legal services are expensive. They are just out of reach for many Canadians.
In British Columbia, a single person making minimum wage will not qualify for legal aid if they are working full-time.Footnote3 The situation is the same in other provinces.Footnote4 Most people affected by lack of legal aid are women, people with disabilities, recent immigrants, members of racialized communities, and Indigenous peoples, who are overrepresented at lower income levels. Government spending on civil legal aid has fallen in Canada, from $11.37 per person in 1994 down to $8.96 in 2012.Footnote5 Spending in other areas (like health and education) has risen.
While we often see affordability as an issue for low-income households, middle-income earners, who make too much money to qualify for legal aid, also suffer. Some decide not to seek legal remedies or fight criminal charges because of cost. Others have no choice but to represent themselves because they can’t afford counsel. Average legal fees for a two-day civil trial in Canada were $31,330 in 2015, which is out of reach for many.Footnote6 In fact, I think many lawyers wouldn’t be able to afford their own services. The problem is especially acute in family law, where more than half of litigants come to court without a lawyer.Footnote7 In criminal law, while it is rare for persons accused of very serious charges to represent themselves due to lack of funding,Footnote8 legal aid frequently will not cover minor criminal offences,Footnote9 even though these can still affect a person’s life and livelihood.
The numbers of self-represented litigants are not going down. They file about a third of leave applications at the Supreme Court. The average number of these applications that are granted in a given year is zero, since only one or two are granted every five or so years.Footnote10 Dealing with “self-reps” imposes heavy burdens on judges, court officials, and opposing counsel. This leads to frustration and contributes to a second barrier, delay.
Delays
Over the years, trials have become longer and more complicated. Forty years ago, a murder trial might have taken a week. Today, one month isn’t unusual, and complex trials can go on for years. This is partly for good reason. New technologies have brought us new kinds of evidence, requiring testimony from new kinds of experts. The Charter allows an accused to challenge breaches of fundamental rights.
But, as the Supreme Court said in Jordan, we can no longer be complacent about delay. No one wins when a charge is thrown out due to delay – not the accused who has been caught in limbo, not the victims and witnesses who may ultimately feel they have been denied justice, not society. No one.
Delays in the civil justice may be even worse, as there aren’t the same constitutional pressures when a person’s liberty isn’t at stake. Parties overwhelm each other with thousands of pages of disclosure. It can take a year or more even to get a date for a trial that might last two months. In the meantime, parties suffer financial losses or family disharmony; physical and mental health issues remain unresolved. An injured person might be persuaded to take a lower settlement because he can’t work and needs to pay the bills. Delays cause people to make difficult, and life-altering, choices.
Lack of Information
A third barrier to access to justice is lack of access to legal information. How many problems could be avoided if the public had a higher level of legal knowledge, or at the very least quick and affordable access to basic advice?
On the other hand, a little knowledge is a dangerous thing, and that’s no more evident than when you see a self-represented litigant in court, relying on some arcane point of law that she Googled, without realizing why it doesn’t actually help her. Or without noticing that everyone else in the room is getting frustrated at the waste of time.
It isn’t just a problem of a lack of information; there is also too much misinformation. People are starting to distrust public institutions. Some litigants choose to represent themselves not because they can’t afford a lawyer, but because they don’t trust them. Because lawyers are part of the “system.” Just providing more legal information won’t solve this.
What Can We Do?
When I spoke earlier about how access to justice has been a longstanding challenge, I didn’t mean that it can’t ever be overcome. Judges, lawyers, and policymakers have made extraordinary efforts to improve access in recent decades. Many of you in this room are responsible for the legal clinics, pro bono programs, dispute resolution mechanisms, and legal information initiatives that are helping shine the light of justice into the dark. I don’t want to downplay any of that work. My point is, we need to continue it.
We need to do more to provide legal information to citizens at court houses, through justice organizations, and online. With today’s technology and communications tools, there are many ways we can improve access to information. We are putting a lot of thought into this at the Supreme Court. We’re posting information on Facebook and Twitter, so that more Canadians will see it, since we know that not everyone is looking at the Court’s website. Our plain-language Cases in Brief describe decisions in non-legal language to allow everyday readers to understand the decisions, why they are important, and how they may affect their lives.
Every actor in the justice system has a role. Judges can no longer stay on the sidelines, but need to think critically about how they can improve access. Related to that, we need more judges on the benches. We have dozens of judicial vacancies in this country. Every position that goes unfilled means longer waits for cases to be heard, which reduces access for everyone.
Legal aid programs need to find new and innovative ways to provide competent services with limited resources. From policy makers to law societies, everyone in the justice system needs to think hard about what we can do differently to give people access to justice and maintain confidence in the legal system.
Last, but certainly not least, we need lawyers to do more pro bonowork. All of you are in this room because you care about access to justice. Because you know this matters. You’ve made a commitment to help. And I applaud you for it.
It is a privilege to practice law in this country. Society puts a lot of trust in lawyers as members of the bar. The work of a lawyer is a kind of public service, in that it supports our democracy, protects human rights, and keeps our economy running smoothly. Of course, there are many bad jokes out there, and you’ve probably heard a few, that will tell us that being a lawyer isn’t about any of that at all. But it is a noble calling. And part of that nobility is found in giving back, when we can. I know all of you are here because you want to.
Our challenge is to find ways to integrate pro bono work into the fibre of our profession. To make it more than just a nice value-add that we can feel good about. Providing pro bono services doesn’t have to mean giving up your income or sacrificing all of your spare time. It means giving back a little.
I am encouraged to see that pro bono representation is increasing. Law firms are now building pro-bono projects into their business models, as a way to give back, build a positive reputation, and give their younger lawyers the courtroom experience they need to become better advocates. We’ve got to encourage this trend. You’ve got to encourage this trend. Many of you have joined firms that take on pro bono work. Make sure those programs are maintained, and expanded. You’ll have a voice where others don’t.
Conclusion
Pro bono work is hard. Professionally, and emotionally. When we talk about the numbers and statistics, we often don’t take the time to acknowledge the human cost behind it. The anxiety and suffering of people who need legal help but can’t get it – and the stress and anguish of the people who are trying to help, but simply cannot do all that needs to be done. I said pro bono work is a noble calling; that doesn’t mean it’s glamourous. But it is work you can proud of. And it is our responsibility, as a society.
As much as we may want a perfect system, we live in the real world, with real challenges and limitations. But that does not mean we should not continue to aim for something better, because the higher our aim, the more we will achieve.
Let’s do our part to make sure everyone can get through Balzac’s spider’s web without getting caught.
Thank you.
https://www.scc-csc.ca/judges-juges/spe-dis/rw-2018-10-04-eng.aspx
:::
DO OUR COURTS DISPENSE TRUE JUSTICE?
SIDNEY KATZ AUGUST 1 1959.
Are they fair and equitable to all? Are our judges honest and competent? Do the wheels of justice move too slowly?
After a pioneering, six-month investigation, a Maclean's editor presents the first of a two-part report on the state of the nation’s judicial system.
Do our courts dispense true justice?
“Justice,” said Daniel Webster, one hundred years ago, "is the greatest concern of man on earth.” This declaration is equally true today. The administration of justice is of intimate and vital concern to every man, woman and child in Canada. Our courts have the power of life and death over us. They protect our freedom, but, under certain circumstances, can imprison us for long periods of time. They safeguard our property and wealth; on the other hand, they can take our property away from us for a number of causes and in a number of ways. Yet. despite the formidable powers wielded by the judiciary, the average person is only dimly aware of how' the machinery of justice functions. He is usually content to leave the matter in the hands of our judges, lawyers and police departments, without comment.
Perhaps this lack of urgent and widespread public concern is an unspoken tribute to our judicial system. In that system, we have much to be proud of. The final arbiters of our law are the nine justices of the Supreme Court of Canada, in Ottawa, who have been described as "the sturdy champions of civil liberties, the fairest men in the land.” In each province, a supreme court holds sway, made up usually of a "trial” and an “appeal" division. The trial division is known by different names in different provinces — the Supreme Court, the Superior Court, the High Court of Justice or Court of the Queen's Bench. Beneath it are division or county courts. All the courts mentioned here are presided over by some three hundred judges appointed for life by the federal government, thus granting them considerable freedom from political and financial pressures. At the local level, justice is dispensed by magistrates who are appointed by the attorney-general in each province. The court which the average citizen is most likely to have contact with is the magistrate's court, since it is here that traffic and liquor cases, as well as ninety percent of all criminal cases, are heard.
Rarely have our courts been accused of corruption or dishonesty. Yet it is well known to members of the bench and bar — as well as many hapless citizens — - that all too often the wheels of justice move too slowly. Indeed, to some individuals, justice is being denied almost completely. Reforms are urgently needed to improve the caliber of the man on the bench, to guarantee equality before the law for all and to streamline the judicial process.
Up until now. improvement in our courts has been obstructed by a widespread belief that judges and courts are sacrosanct and beyond criticism. This attitude is changing, due largely to pronouncements such as the one recently made by a prominent English jurist: "The courts must be allowed to suffer the scrutiny . . . and outspoken comments of ordinary men. No wrong is committed in criticizing the courts, both in private and public, provided the criticism is made in good faith and the critics abstain from imputing improper motives to those taking part in the administration of justice.”
"Judges are human like the rest of us.” says Professor G. V'. V. Nichols of the Dalhousie University law faculty. "Elevation to the bench confers on the recipient no immunity from the possibility of error.”
A Toronto lawyer who is interested in legal reform. States flatly. "If people don't criticize the courts, the courts become worse and fall into disrepute. Constructive. intelligent criticism doesn't mean less respect for the judiciary.”
For several weeks. Maclean s has been visiting courtrooms all across Canada and interviewing judges, lawyers, government officials and others engaged in the administration of justice. We studied many questions. Are citizens forced to wait an unreasonable length of time to get a decision from the courts? Can the average citizen expect to get a fair deal in court? How competent are our judges? Can the person w ith a moderate income afford his day in court? What arc
the problems — not usually voiced in public — which bedevil our courts and the men who spend most of their lives in them?
The principal conclusion of the survey is that our courts, in the main, well merit their reputation for honesty and impartiality. On the other hand, our judicial machine has become antiquated, undersized and underpowered. “Our courts have a teaspoon to do a job that ought to be done with a steam shovel,” says an official of a law society in the Toronto district. Our courts, we discovered, are staggering under an unprecedented case load—the result of a doubled population in the past forty years, the advent of the motor car. business expansion and the proliferation of laws and statutes to regulate many aspects of our lives. This often breeds irritation, disillusionment, cynicism and disrespect for the law. Here are the complaints about the administration of justice which were most frequently voiced:
The law’s delays are too long and too many. In British Columbia, the backlog of cases is so great that it now takes nine months to set the date for a civil trial. In Quebec, some cases are held up for fifteen months before being heard. At least a proportion of the delays are due to a shortage of courtrooms, judges and court reporters. An Ontario judge told me that it sometimes took the reporter six months, after the conclusion of a trial, to deliver a transcript of the proceedings. The judge couldn't begin to prepare a judgment without it.
But even if a case is heard without undue postponement and the transcript prepared promptly, the litigants still have no guarantee that they will be given an early decision. Many judges, at the conclusion of a trial, “reserve judgment,” i.e.. postpone their decision for a few weeks—or even several years. When a Maritimes judge died a few years ago, he left behind about twenty undecided cases, some of which had been heard a full ten years before his death. Litigants in Quebec have had to wait three years or more for a judgment. An Ontario barrister told me that he had one client who was kept waiting for eight years. Another lawyer in the same province pleaded a straightforward expropriation case before a county court judge. Almost eighteen months have passed and he has not yet been given the results of his pleading. Yet less than a hundred miles away, a much busier county court judge heard six similar expropriation cases and rendered a satisfactory judgment on all of them within six weeks.
In the opinion of many competent observers, such as J. V. Clyne, formerly of the B. C. Supreme Court, a large number of these delays are not necessary. “I don’t think most decisions should take more than three months; in exceptional cases, six months.” he says. The exceptional cases might include complicated constitutional matters or “first impressions” — judgments in which new principles of law' have to be enunciated. In most cases, which arc pattern cases — 'i.e., they conform to previous cases reported in the law' journals — there is a widespread feeling that the sooner the judgment is rendered, the better. “The further a judge gets away from the trial and the more other matters intervene, the more elusive the facts and ‘the feel’ of the case become,” says Chief Justice Arthur T. Vanderbilt of the Supreme Court of New Jersey.
Why do delays occur? Various explanations have been offered. “Some judges just can’t make up their minds,” says Cecil Wright, dean of the University of Toronto Faculty of Law'. This ambivalence can arise from a lack of knowledge of the law', or conversely, from knowing too much law. “I’ve known colleagues who analyzed both sides of the argument with such completeness that they were paralyzed to the point of inactivity,” a Quebec judge told me. “They used every device to postpone a judgment. I’ve always felt it*> better to make quick decisions even though I may be wrong occasionally.” Some judges, who are uncertain of themselves, delay decisions through fear of being criticized by a higher court for a poor performance.
READ MORE HERE:
https://archive.macleans.ca/article/1959/8/1/do-our-courts-dispense-true-justice
:::
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, FILE THE REQUIRED PAPERWORK BEFORE DEADLINES HAVE PASSED OR PRESENT ANY EVIDENCE THAT MIGHT COUNTER A WORKERS SWORN AFFIDAVIT OR CHALLENGE ALLEGED EXPERTS BEFORE THE FAMILY COURT JUDGES 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
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
:::
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 because they weren't testing people with the resources their own lawyer or to get a second opinion. Poor 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.
The ministry sidestepped a question emailed by the Toronto Star on whether it would impose the requirement to register their 5000 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.
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."
One would have thought that post-Motherisk, we would want parents and children to have more procedural protections and safeguards, and yet, it looks like the opposite is happening again.
In the wake of Motherisk, children's aid societies have continued to emphasize working with parents outside of court on a "voluntarily" basis, which might include parents giving up their children to the agency under a temporary care agreement. These agreements are usually signed without lawyers and circumvent the court, which is the only place the powers of the CAS can be kept in check.
To me, Motherisk is a symptom of a larger problem in child protection work. The Motherisk scandal came about because of the failure of the legal system to protect parents and families. Somehow, we have forgotten that the desire to do good cannot be done at the expense of rights violations.
The balance between protecting children from the risk of harm and protecting parents' and children's basic rights to fairness is a challenging one. It is easy to fall too heavily on the side of overriding a parent's rights in favour of efficiency and expediency. But to ensure that something like Motherisk never happens again, it is something to which everyone involved in child welfare — lawyers, judges and caseworkers — must strive.
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
:::
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
:::
Motherisk Is Another Symptom Of A Much 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/
::::
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 PAY OFF
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
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
:::
2015: 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.
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
:::
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.
http://www.tammylaw.ca/…/report-of-the-motherisk-commission/
:::
2019: OACPL Response to Canadian Lawyer Magazine. TAMMY LAW.
As President of the Toronto Chapter of the Ontario Association of Child Protection Lawyers (“the OACPL”), I was incensed to read the following article “Protecting the Most Vulnerable”, which was published in its latest issue.
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
:::
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
:::
"[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."
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.
:::
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
No comments:
Post a Comment