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Thursday, August 27, 2009

Day 5 Society's Child: Children's Services Takes Action But Within the Rule of Law?

Society's Child is a blog series emerging out of a Director in Alberta Children's Services being found in contempt of court. This series deals with how the best interest of the child in question has been handled by those involved. It is based on the records filed in the Court of Appeal in Alberta.

If you are just joining us here is a synopsis of the facts:

A child was in foster care with the same family almost from birth to 4.5 years old. He was removed from that foster family based on a Children’s Services investigation about alleged abuse. The Foster Mother appeal the removal decision. A Children's Services Appeal Panel reversed the Director's decision and ordered the child returned to the Foster Mother.

Children’s Services appealed that decision to the Court of Queen’s Bench sided with the government, said the Appeal Panel erred in law. That court reversed the Appeal Panel decision saying it could not "second guess" the government and confirmed the child should be removed from the foster home.

The Foster Mother then went to the Court Of Appeal who found the Court of Queen’s Bench erred in law, not the Appeal Panel. They ordered the child returned to the Foster Mother. Later the Court of Appeal found the Director to be in contempt of court for failing to follow the court order to return the child to the Foster Mother.

What events and actions that led to the contempt of court is where we pick up the story on this Day 5 of "Society's Child."

Children's Services Petitions for Adoption of the Child in the Face of the Court Order:

While waiting for the Court of Appeal decision on the future of the child the government Director who was also guardian of the child, petitioned the courts for adoption of the child by the extended family, which was caring for him at the time. It is an interesting question as to why this was done and at this time.

This seems to me to be unduly hasty given that the Court of Appeal decision to return the child to the Foster Mother had been made on January 30, 2009 but had not yet been file. In the meantime a Petition for Adoption of the child is filed by the government. One would think the prudent course would be to wait for the Court of Appeal decision to be filed. It would have some serious implications as to where the Child ought to be residing and even if this adopted was appropriate. Is this further ineptness, a continuing disregard for the courts or a tactical move to add pressure on the Foster Mother's pursuit of the government for the return of the child to her care as ordered by the court?

Foster Mother Responds With Actions of Her Own:

Faced with the government's adoption petition of the child, the Foster Mother took some significant legal steps of her own. First she had her lawyer write to the government and the Court of Queen's Bench in mid-March 2009. She was advising them that the Foster Mother was considering instructions to her lawyer about the adoption. The lawyer asked that no further steps be taken without notice to the Foster Mother.

The Foster Mother also wrote to Children’s Services on February 5, 2009 asking for the return of the child to her saying that the court had determined his return to her care was in the child’s best interest. She also suggested a meeting with Children’s Services to discuss the government’s expectations regarding the child. Interestingly, on February 5, 2009, the same day, the government’s lawyer sent a letter to the Foster Mother’s lawyer. It said to the effect that while the Court of Appeal concurred with the Appeal Panel’s decision to return the child to the Foster Mother, “…neither the Appeal Panel, nor the Court of Appeal indicated it was in the child’s best interest to return the child to your client’s care.” (Emphasis added)

The government goes further in this letter to say, "In any event, my client does not believe that it is in the child's best interest to be moved from the home of is prospective adoptive parents where he has resided for over two years." (Emphasis added). There seems to be no appreciation in this position that the child had lived with the Foster Mother for over the first four years of his young life. But there are other serious concern about the content of this letter.

This letter from the government’s lawyer appears on its face to say that notwithstanding what the Court of Appeal decided it did not consider the best interest of the child and the government has decided otherwise. And so Children's Services, in this letter, appear to put itself above the courts and states it will not be complying with the order of the court. How can this be happening in a country and a province that ascribes to the rule of law?

Optional Courses of Action for Children's Services:

If the government did not like the Court of Appeal decision it could have appealed to the Supreme. But their time for such an appeal has already lapsed, and you have to wonder who was at fault for that? Alternatively and according to the rules of Court 390(1), they could have gone back to the court to ask for the decision to be reconsidered, varied or set aside. If they had new evidence that would influence or change matters they should have brought it to the attention of the court. They didn’t do that, instead they wrote a letter the opposing counsel saying they, the government, did not agree with the court and therefore they would not be following the order of the court. Astonishing!

This Rule of Court is there to enable variations of court orders to correct errors in the original decision or to reflect important facts that subsequently come to light. There is a court case, Public School Boards Association v. Alberta AG (1998) in the Alberta Court of Appeal that explains the scope of Rule 390. Rule 390 “…it is not a try again or a do over.” “It does not permit an applicant to revisit any issue because he is dissatisfied with the original decision and has thought of better arguments. Otherwise there would be no finality to litigation.”

Instead of revisiting the court decision, Children’s Services “believed" the court order was not in the child’s best interest. They took the position they were simply not going to comply with the decision of the courts. With that attitude it appears that they believed they were above the law and did not have to obey the law. This attitude to be above the rule of law, from a government, simply invites anarchy. It is amazing to me to see this attitude of appearing to be above the law expressed in any way by government in a free and democratic society like Canada and Alberta. To actually see it in writing, from my government, is even more demoralizing and unsettling.

Children's Services Tries To Negotiate a Deal:

The government officials and the Foster Mother met February 20, 2009. The government agreed to contact the extended family, who still had the child, to facilitate the Foster Mother having visits with him and to arrange “post-adoption” visits for her with the child. The government was unsuccessful in negotiating such arrangements with the extended family. The Foster Mother was advised of this failure in a letter dated February 26, 2009. The Director then petitioned for adoption of the child by the extended family on March 13, 2009.

Foster Mother Writes to Court of Appeal for Clarification of Their Order:

Through all of this, the Foster Mother still had not seen the return of the child as order by the court. On April 14, 2009 her lawyer wrote to the Deputy Registrar of the Court of Appeal asking to appear again before the original panel of Justices to “…appeal for guidance, direction or clarification” of their decision to return the child to the Foster Mother.

Instead of re-appearing in the Court of Appeal the Deputy Registrar wrote to the Director on June 4, 2009 confirming the direction in the court’s decision that the child had to be returned to the Foster Mother.

This letter from the Court of Appeal triggered Children’s Services middle management to “…canvass the availability of upper management t arrange a meeting the following day.” That meeting happened on June 5, 2009 and included departmental senior management people, Director Ouellet, his lawyer. And according to a filed affidavit of a government employee, not the Director, these people “discussed how we could respond to the Court’s direction in a manner that would least impact the child.”

Theses Children’s Services people seem to be oblivious to the duty of care they have to serve the best interest of the child and their duty to follow the rule of law. Both duties required them to return the child to the Foster Mother as decided and ordered by the Court of Appeal. Children's Services had still not even contemplated how and when they were going to comply with the law and return the child as order by the courts in this June 5, 2009 meeting.

In fact on June 8, 2009, according to the same affidavit, the government game plan was to develop a plan that would entail returning the child to the Foster Mother “…for a period or time.” (Emphasis added). Even when they were finally considering obeying the court order they were still equivocating about fully respecting the court decision.

On June 9, 2009, the Director’s government lawyer advised the group that they had received notice that the Foster Mother had, on the previous day, filed a court application to find the Director in contempt of court. We will pick up this part of the story in the next post on Day 6 of Society’s Child.



NOTE TO READER: Here is a link to a blog post the puts all posts of the Society's Child Services in one place so you can go back and put the whole matter in context.

6 comments:

  1. Grant A. Brown, DPhil (Oxon), LL.B.5:23 pm

    Ken,

    The only thing "amazing" about this case is that you are amazed by it. You obviously haven't practiced in the area of family law. Contempt of court orders, perjury, tactical delay, dishonesty in correspondence between lawyers - all of this is common fodder in our family courts. They are at least as big a gong show as the kangeroo courts we call human rights tribunals.

    I witnessed one mother sit at counsel table in court, holding her arms ram-rod straight in front of her with wrists pressed together, and tell Justice Jack Watson that if he was going to send her to jail the next time she refused to comply with his access order, then he might as well take her away in handcuffs right then an there, because she wasn't going to make her kids do anything they didn't want to do. This was just after Justice Watson had found her in breach 4 times in 2 months (i.e. every other weekend). This was after having the benefit of an open custody assessment which completely exonerated the father of any wrongdoing and implicated the mother in parental alienation tactics. Of course Justice Watson caved in and did absolutely nothing, saying it wasn't his job to punish mothers! Needless to say, that was about the last time dad saw his girls in his life.

    These are the geniuses that currently sit on the Alberta Court of Appeal. All will be revealed in my forthcoming book, "Deadbeat Judges: How Courts Disenfranchise Fathers."

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  2. YOuy are right, I have not practiced in the area of fmily law for a long time Grant...but I used to.

    Your comment may be well taken but how does it relate to the concern that Children's Services, at least in this Fost Mother's case, did not follow a cort order.

    I see that many citizens, including mothers, are oftern in contempt of court in famlily law matters. the law is such a blunt instrument to heal hurt and sustain relationships, but it is what we have when all else fails.

    You and I have been through some of those issues when I was working on the men's issues around domestic violence and bullying when Iris Evans was Minister. Good to hear from you again.

    I agree that selective enforcement, and even discriminatory enforcement, is something that needs airing adn perhaps correcting. I am just surprised that a people in charge of at-risk kids in a government department would appear to be ignoring the rule of law in these circumstances. We need to be assured our government, who makes the laws, respects the laws.

    This is not as simple a matter as that either. I understand that but if the courts are wrong, surely the government has all the resources it needs to access the courts to correct the record. It has a duty to find and offer new evidence as necessary to protect the best interest of a child in its care.

    Why that was not done here makes one wonder if they had any good evidence in the first place to remove the child. The Court of Appeal and the Appeal Panel both found that that they didn't.

    If they were so concerned about the well being of this child you would think they would have updated their evidence with an improved investigation and then returned to court to apply to vary the order to return the child. They did nothing close to that.

    I find that astonishing under these circumstances.

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  3. Anonymous9:45 pm

    When I read the Minister's response, that they "put out a directive to follow court orders" I thought that some poor overloaded worker missed the boat on this one. Now that I read your blog today, it sounds like there was a bunch managers calling the shots on this one. It sounds like they were put off by being second guessed by their own appeal panel instead of considering the best interests of the child.

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  4. Grant A. Brown11:56 pm

    Ken,

    I am as appalled by the Director's actions as you are. I'm just not as surprised. I think a little context is needed.

    One part of the needed context is that the public is positively encouraged by judges themselves to have contempt for their custody and access orders.

    Another part of the context is that government agents have a proclivity for over-stepping their powers and reaching beyond their abilities. As a libertarian, I'm always amused when die-in-the-wool statists are shocked by government agents who act like petty tyrants. Why would people claw and grasp for the unmatched power of the state except to use it from time to time?

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  5. Anonymous7:19 am

    What would make a civil servant go against the rule of law, potentially putting his whole career on the line? I agree that the rule of law is important, but it seems we are unable to assess the facts that led to this situation.
    I share the opinion that the modern practice of family law should be stereotyped and labelled as family abuse law as well. This was some time ago, but my ex wife and I had to fight the legal system beginning-to-end to get them to accept what we had already determined was a fair, just and humane settlement. Had we listened to our human instincts we would have broke out in fisticuffs and fought each other by spending our life savings making fatal enemies out of each other. Instead we fought the system to stand behind a fair and just settlement inspite of judges formulas and incredible terrible legal advice. We got through the process unscathed and we amaxingly only wasted about $1,700 on legal services (also silly since we negotiated and wrote the agreement oursevles and only required it to be put into leaglize).
    So for this and many other reasons family law as we know it enjoys its sceptics.
    Regarding this case I still think the rule of law is important, but I would really like to hear the story we will probably never hear about what really went on to motivate a career civil servant to put in on the line. Maybe he was just a guy thumbing his nose at the rule of law or perhaps he has a story. Hmmmm.

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  6. The last two anonymous comments are on to something. We have not yet heard Mr. Ouellet's side of the story. It will be the centre of the Day 6 post. I have some sympathy for him but he is still the creator of his own unfortunate circumstances.

    I think civil servants were oblivious to the impact and import of the court order and saw it as just another fact and issue along with all the various facts and issues they had to deal with. The court process and the court orders were not afforded the priority they demand and the rule of law wasn't part of the conscience of the government guys.

    The people working in these social services areas in the government are not bad people. Sure there are some bad apples but always as an exception.

    What seems to be happening is the front line workers get isolated from management and feel abandoned. Management is afread of making mistakes so they get inert. Senior management is always trying to anticipate and please the political masters and deliver on the policy priorities of the Ministers and Cabinet and Treasury. The culture becomes nervous and defensive and civil servant survival is the goal not outstnding service to clients.

    When the dominant measurement of success in social service sectors is tracking the dollars and keeping the auditors off your back, the clients and caregivers suffer. As we roll through this recession and the pending provincial budget realities, this culture of keeping your head down will only get worse.

    Fiscal accountability is very vital to good government. But knowing the cost of everything but the value of nothing is a fundamental breach of the social contract to my mind. We need both motivators and measures of success for really good government.

    Right now only the cost criteria is important to the political masters in the provincial government. But that is like water is to soup, essential but insufficient.

    I hope this blog series encourages the department management and leadership to move beyond fixing the blame and to start fixing the problems.

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