Tuesday, August 18, 2009

Day2 Society's Child: Accessing and Reviewing the Court of Appeal File

I visited the Clerk of the Court of Appeal of Alberta on Wednesday August 12 and asked to see the contempt of court file relating to Director in Alberta Children and Youth Services. I said earlier in this Blog that I would research the issues and comment about how the best interest of the child was served in this case. I was also interested in the background about how a policy unit in an Alberta government social services department could end up acting like they were not bound by the rule of law.

When I arrived the Clerk’s office asked me to write a letter outlining what documents I wished to see and why. My first reaction was puzzlement because court files are public documents unless there is a court order sealing them. That was not the case here. It then occurred to me that the concern was likely about the risk of identifying the child who is at the centre of all this. Of course his/her identity had to be protected. The matter is very current and complex and the child’s privacy should be of foremost concern. I expected the courts didn’t have the time to prepare a public copy of the file that would remove certain names to protect the identity of this child. I was right, so don’t run down to the court house to see the file, at least for a couple of weeks.

Given the circumstances, I wrote the letter and described what I was doing and why. I advised the Clerk’s office that was going to write some blog posts on the best interests of the child issue and other concerns I may discover in reading the file. I told them that I’m a lawyer on the inactive list but still a Member of the Law Society of Alberta. I said that I was bound by the Code of Conduct and as an officer of the court, I had a duty not to disclose the identity of the child in any writing I did.

I was called right after I faxed the letter and was given access to the unexpunged copy of the Court of Appeal. I spent about 7 hours in the Clerk’s office going over the documents last Thursday and Friday. I appreciate the co-operation of Clerk’s office and the Court of Appeal in allowing me such timely and open access. I have to tell you from watching these Court of Appeal clerks, they are hard working, conscientious and spread very thin. They have staff shortages, a hiring freeze and holiday scheduling to contend with as the court system grinds on without any summer lull. C'est la vie in times of budget restraint.

With access to the file I know the names of the parties so I need to explain some ground rules I will use in this blog series to protect the identity of the child. I will refer to the child as “he” or “the child” for purposes of convenience. I will refer to the “Foster Mother.” She is known as B.M. in the published court documents. The “Extended Family” was a caregiver to the child before his recent return to the Foster Mother.

As a matter of fairness, I will not use the names of any of government staff involved in the case but will refer to the positions they hold. I think they also deserve some privacy. Besides there is apparently a government investigation on-going by Children and Youth Services and Alberta Justice to see if others may also be found in contempt of court. Those parties are innocent until proven guilty and nobody has even been identified yet as even being potentially in contempt. It is not the time or place for me or readers to jump to any conclusions. So in fairness, I will respect their privacy under these circumstances. I will do my best to monitor that government investigation and the independent departmental review order by the Minister of Children and Youth Services (CYSA). I do not expect much of it will be made public until it is complete, if then.

I will use the Minister’s name, the Honourable Janice Tarchuk and the name of the Director, Richard Ouellet, who was found in contempt of court. They are the public faces on this file. I hope people don’t find this too awkward in reading the series but it has to be this way to protect the identity of the child.

After reading the entire file I have some sympathy for Mr. Ouellet, the Director who was found in contempt of court. He is still guilty of contempt but I think he received bad advice as Mr. Justice Cote noted in his Penalty Decision. But with 32 years in government you would also think he would also know better. More on that in later posts.

Now for some background facts to set the stage. The child was under permanent guardianship of the government from September 2003. The child was 3 months old when the Foster Mother started caring for him in Edmonton. He was removed from the Foster Mother’s care when he was 4 and a half, as a result of an inspection of the foster home done by CYSA. He is now 7 years old in school and back with his Foster Mother. He was returned the day before Mr. Ouellet appeared before the Court of Appeal in an unsuccessful attempt to vary or vacate the finding of contempt of court against him.

The child was taken away from the Foster Mother in October 2006. He was moved up north, placed with relatives who started adoption proceedings in March 2009. The Foster Mother's family was also interested in adopting him and had applied in 2005. The . There are documents on file that say the Foster Mother is aboriginal as is the extended family and the child was exposed to native spirituality and aboriginal culture throughout his life. So you can see this child was not unwanted nor unloved. In fact two families obviously care for him and want to adopt him. The adoption of the child is still an open issue and therefore not part of my review.

The Foster Mother took immediate steps to appeal the Director’s decision to remove the child from her care. Next post I will tell you about the process and grounds the department of Children and Youth Services used to remove the child from the Foster Mother’s care. An Appeal Panel reviewed the Director’s decision in hearings starting March 28, 2007 and continuing May 17, 18, 24 and 25, 2007. The Appeal Panel obviously considered its decision thoroughly and carefully.

I will tell you next post why they reversed the Directors decision and ordered the child returned to the Foster Mother. I believe the Foster Mother is a woman of courage and persistence. Without her and her lawyer, we may never have known about this case. Nor would we have the benefit of considering the lessons to be learned from this case. We have lots to learn in terms of how our society and social service systems deal with at-risk kids, who are, after all, the responsibility of all of us - not just our government.


  1. Ken Collier12:56 pm

    I look forward to this series, though if it is possible to go beyond court documents and legal proceedings,that would serve the whole topic area better. There is an old book "Beyond the Best Interests of the Child" by Joseph Goldstein, Anna Freud (Sigmund's daughter) and Albert Solnit, presenting a multinational and multi-cultural review of those children's interests based on social, cultural, maturational, brain physiology and other foundations.

    Alberta, it seems to me, leans rather far away from child-centered interests, and emphasizes parental, adoptive, fostering and social agency rights. Privatized child welfare, protection and adoption functions certainly match up with a general anti-government, anti-state bias in the media and, I think, in Alberta society at large. But they also virtually guarantee results like the one Ken Chapman is researching - pressurized bureaucrats acting in interests other than those of the child. Eventually, a judge familiar with some of the concepts of rights of the child, not only from a court and precedent, legalistic vantage point, but also from child-centered stance, will find for the child, even if that can only be enforced by a court ruling such as the contempt finding at question. There will almost certainly be more of these issues, as there have been in past several decades in Alberta.

  2. Thx for the Comment Ken - I hope the comments on this blog will help us go beyond the court case. I am not qualified to do that but as a citizen I sure am interested in hearing from those who are qualified.

  3. Sheryl Pearson4:09 pm

    Cases like this one really highlight the need for children to have independent legal counsel appointed to represent their preferences and interests. The "best interests of the child" position that was advocated by the director in this case was embedded in institutional, political and resource considerations. I am not suggesting that the position taken by the director was right or wrong, but one could easily conceive of an alternate "best interests" position for this child that would look quite different. Obviously, the best interests position taken by the director in any given case should never be seen as a clear or objective indication of what is in fact in the best interests of the child. This is often forgotten.

    The Legal Representation for Children and Youth Service (LRCY)is an extension of the Office of the Child and Youth Advocate. It appoints legal counsel for children and youth involved in protection proceedings and was created for the precise purpose of ensuring that the child's voice is heard in legal proceedings--independent of the director, independent of biological parents and independent of caregivers. LRCY has been criticized for appointing counsel for children who lack capacity to instruct counsel. When a child is unable to instruct his lawyer, the lawyer must determine what position to take on behalf of the child. Many counsel often assume a position that, in their opinion, represents the best interests of the child. Some critics argue that a best interests position taken by the child's lawyer is no different than that of the director's counsel and that a child's lawyer is therefore unnecessary. This case highlights how a best interests approach taken by a child's lawyer could easily be distinct from that of the director's counsel. Director's counsel is constrained by other considerations (institutional, political,resource constraints) while the child's counsel has only the evidence to consider in putting forward a position on behalf of the child. That is not to say that some children's lawyers aren't also influenced by their own personal biases of what is best for a child (but that's a different conversation altogether).

    LRCY was established to ensure the appointment of independent counsel for children and youth. Prior to LRCY, Alberta Justice was responsible for appointing legal counsel for children under the age of 12. There is an obvious conflict when Alberta Justice represents the director while at the same time appointing (and paying) counsel to represent the child's legal interests.

    LRCY has made a huge contribution toward ensuring that the voices of children are heard in the proceedings which directly affect them. Critics of LRCY or its appointment process need not look further than this case to see the importance of independent counsel for children and youth. Ken, I hope you will spend a few lines addressing the position taken by the child's counsel in this case so it becomes obvious how invaluable the role of child's counsel is in the equation of the court's determination of what is in the child's best interest.