2016: Three-month investigation leads to charges in children's services server breach.
2020: ALLEGED HACKER KELLEY DENHAM RECEIVES TOTAL ACQUITTAL.
Details to follow in the Ottawa Citizen shortly and we'll post the complete decision as soon we have it. (2020/06/02)
https://www.ocswssw.org/wp-content/uploads/2019/05/Discipline_Decision_Kelley_Jean_Denham_826163.pdf
*UPDATE: AS OF DEC. 5, 2016 ALL CHARGES AGAINST DEREK FLEGG HAVE BEEN DROPPED
*UPDATE: AS OF MAR. 21, 2018 THE FOLLOWING CHARGES AGAINST KELLEY DENHAM HAVE BEEN DROPPED:
1) Theft under $5000 - s. 334 Criminal Code of Canada
2) Traffick in identity Information - s. 402.2(2) Criminal Code of Canada
Charges still pending against Kelley Denham;
1) Mischief over $5000 - s. 430(1)(c) Criminal Code of Canada
2) Mischief to Data - s.430(5) Criminal Code of Canada
3) Unauthorized use of a Computer - s. 342.1(1)(c) Criminal Code of Canada
4) Publication of Identifying Information - s. 85(3) Child and Family Services Act of Ontario.
*UPDATE: Trial transcript now available for August 13th and August 14th 2019.
Just follow the link: https://www.kelleyandderek.com/
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ClassActionNews:
The law firm of Flaherty McCarthy LLP has commenced a multi-million dollar Class Action against Family and Children’s Services of Lanark, Leeds and Grenville, and others, seeking damages arising from a serious and unprecedented privacy breach. The allegations contained in the Statement of Claim have not yet been proven in Court. The proposed Class Proceeding seeks $75 million dollars in damages on behalf of 285 people and their family members whose names were on a list of 285 families involved with children’s services, which was leaked on Facebook. Those affected individuals should receive notice from CAS of the privacy breach. The CAS had contacted 194 of the affected individuals by April 25, 2016.
At this point, the matter is a proposed class proceeding. As a class member, you do not have to do anything more to be involved in this lawsuit. You will be a member of the class until you are given the opportunity to opt out, which will be your choice.
Class Counsel has commenced and served a new proposed Class Proceeding bearing Court File No. CV-16-557244-00CP. This was necessitated by concerns raised by Counsel for the Crown Defendant that adequate notice of the original action had not been provided in accordance with applicable Statutes. Rather than getting in to a lengthy dispute on this issue, we felt it was more appropriate to commence a fresh action that accorded with the applicable notice provisions. This also allowed us to make several changes to the original claim to further particularize the allegations, causes of action and common issues. This new claim has now been served on all parties. At the appropriate time in the future, we will seek Court approval to discontinue the original action and proceed only on the new action. This does not affect the rights of Class Members in any way.
The Honourable Mr. Justice Perell has been appointed as the Judge responsible for managing this proposed Class Proceeding.
A Judicial Case Conference was held on October 7, 2016 for the purpose of setting a Certification Motion Schedule. Subsequent to this Conference, the plaintiffs have chosen to discontinue the action against all defendants EXCEPT Family and Children’s Services of Lanark, Leeds and Grenville and Jane Doe.
The Certification Motion will proceed in November 2017. The plaintiffs served their Certification Motion Record in January 2017.
On December 21, 2017, we were successful in having the lawsuit certified as a class action. The litigation administrator, Deloitte LLP, will be providing notice to class members of the Certification Order and the opt-out process in early 2018. Deloitte LLP will be providing this notice to class members based on their last known contact information stated in the private and confidential FCSLLG document at issue. Therefore, if you are concerned that the document may not have your most recent address and contact information, please contact Deloitte LLP at classactions@deloitte.ca.
The Court appointed litigation administrator has now given notice that this matter has been certified as a Class Proceeding, in accordance with the Order of the Court.
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Unfair or Indefensible - Costs Against C.A.S.?
On behalf of Gene C. Colman Family Law Centre posted in Child Welfare on Tuesday, January 7, 2014.
There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal (Ontario Family Law Rules, R. 24(1)). There is, however, no such presumption for costs in a child protection case (Rule 24(2)). Does that mean that a successful parent can never obtain a costs order against a children's aid society? Let us delve a little further.
The lack of presumption for costs is perfectly understandable. The Courts have been hesitant to impose cost orders against children's aid societies as they are faced with the difficult statutory duty of protecting children from harm and the law tells us that they should not be punished (through costs orders) for errors of judgment. A further reason for courts rarely awarding costs against societies stems from the view that societies should not be discouraged from taking action because of the risk of an adverse costs order.
Rule 24(2) does not give children's aid societies the authority to behave with impunity though. The courts have (and will) order costs against children's aid societies in limited circumstances. For example the 2013 matter of Catholic Children's Aid Society of Toronto v. SSB awarded costs to the mother and Office of the Children's Lawyer for the procedural failings of the CCAST. This case affirms the courts' approach in awarding costs against children's aid societies in that a society will not be shielded from costs where its behaviour is "unfair or indefensible or where exceptional circumstances exist".
In SSB the CCAST sought disclosure of "clinical investigation notes" from the OCL. The OCL claimed that the requested documents were subject to solicitor-client privilege and therefore could not be disclosed as the disclosure would amount to a serious breach of trust between the OCL and the children. The prevailing concern was that the CCAST had sought to obtain the privileged documents on three separate occasions (only to withdraw their motion before a decision could be delivered) and had put the mother and OCL to considerable expense in defending the motions. The judge considered that the repeated attempts to obtain disclosure was tantamount to an abuse of process and verged on acting in bad faith. The judge, most helpfully, summarized the responsibility of the CCAST as follows [at paragraph 12]:
... Like any other litigant, the society must conduct itself according to the rules. It is given broad investigative scope, and cannot and should not be liable for costs for actions it takes in good faith in its duty to investigate cases. That, however, does not give a society licence to ignore the general rules of procedural fairness. When it does, it should be liable in costs.
The CCAST matter also made reference to the 2005 decision of Children's Aid Society of Niagara Region v. B. (C.), which provides guidance for the circumstances when children's aid societies should and should not be liable for costs. These can be summarized as follows [paragraphs 89-100]:
1. Bad Faith Not Required: To attract an adverse award of costs, a children's aid society need not have acted in bad faith;
2. Fairness: Costs may be awarded against a society, "where it conducts itself... in a way where it would be perceived by ordinary persons as having acted unfairly";
3. Indefensible Behaviour: Many cases hold that a children's aid society should only be visited with an adverse award of costs where it has taken a step or position that is "indefensible", ie. "admitting of no defence".
4. Exceptional Circumstances: There is a line of decisions holding that costs should not be awarded against a society "unless exceptional circumstances exist";
5. Error in Judgment not sufficient to attract costs: A society should not be punished for a mere error of judgement (an error of judgement can truly arise only where one has considered all courses of action reasonably available at the time);
6. Society Not to Be Dissuaded by Costs: A society should not be dissuaded from its statutory mandate by costs considerations;
7. Society to Re-assess Its Position: A children's aid society must be even-handed and act in good faith. To this end a society must be prepared to re-assess its position as an investigation unfolds and more information becomes known;
8. Accountability: "Children's aid societies must be accountable" for the manner in which it investigates a case and in the way it chooses to litigate that case (one method of achieving accountability is through costs sanctions);
The judge in CASNR tells us that a society can attract an adverse costs award where it fails in any of the following seven areas (paragraph 102):
1. Investigation before apprehension;
2. Continued investigation after apprehension;
3. Consideration of all appropriate protective measures;
4. Formation of a fair and defensible position;
5. Reassessment of that position as circumstances warrant;
6. Use of properly trained workers; and
7. Accessing independent experts in the field of child psychology.
This more critical approach adopted by some courts should provide some modest encouragement to parents who have been subjected to biased investigations or litigation undertaken by a children's aid society where the C.A.S. actions were patently unfair or indefensible. These factors should be relevant not only to a costs determination but also to the expected standard of care to which child protection authority must adhere. Holding these agencies accountable to such standards should hopefully be encouraged by the case management judge as the case unfolds.
If you have a matter where a children's aid society has acted unfairly, indefensibly or there are exceptional circumstances, you may benefit from a consultation with our experienced child welfare lawyers.
Tags: CAS, Child Custody, Child Protection, Child Welfare, Children's Aid Society, Costs, Procedural Fairness
Related Posts: THE EASTER BUNNY AND C.A.S. ABUSE OF POWER, Do's and Don'ts of a CAS Apprehension of Your Child, C.A.S. Attitude: Win child welfare cases at all costs, PROPORTIONALITY, SUMMARY JUDGMENT, SELF REPRESENTED CHILD WELFARE LITIGANTS
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2019: INDEPENDENT AUDITOR'S REPORT
To the Board of Directors of Family and Children’s Services of Lanark, Leeds and Grenville.
Opinion
We have audited the financial statements of Family and Children's Services of Lanark, Leeds and Grenville ("the Society"), which comprise the statement of financial position as at March 31, 2019, and the statements of operations and changes in fund balances, cash flows and remeasurement gains and
losses for the year then ended, and notes to the financial statements, including a summary of significant accounting policies.
In our opinion, the accompanying financial statements present fairly, in all material respects, the financial positon of the Society as at March 31, 2019, and the results of its operations and its cash flows for the year then ended in accordance with Canadian public sector accounting standards.
Basis for Opinion
We conducted our audit in accordance with Canadian generally accepted auditing standards. Our responsibilities under those standards are further described in the Auditor's Responsibilities for the Audit of the Financial Statements section of our report. We are independent of the Society in
accordance with the ethical requirements that are relevant to our audit of the financial statements in Canada, and we have fulfilled our other ethical responsibilities in accordance with these requirements.
We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our opinion.
Material Uncertainty Related to Going Concern
We draw attention to Note 3 in the financial statements, which indicates that the Society's operating fund expenses exceeded revenues by $1,114,539 during the year ended March 31, 2019 and, as of that date, the Society's current liabilities exceeded its current assets by $3,827,221. As stated in Note 3, these events or conditions, along with other matters as set forth in Note 3, indicate that a material uncertainty exists that may cast significant doubt on the Society's ability to continue as a going concern.
Our opinion is not modified in respect of this matter.
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