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.

"Society's Children" A Blog Series on At-Risk Kids in Care in Alberta

As regular readers will know I have published a number of blog posts on the recent Alberta Court of Appeal finding of contempt of court against the Alberta government Director of Child, Youth and Family Enhancement. You can read them here, here, here and here if you are not familiar with the case.

I have followed the contempt of court issues since the filing of the original decision by Mr. Justice Cote on July 23, 2009. These contempt of court posts are amongst the most widely read in the three years of this blog. The final legal step in the contempt of court issue was August 11, 2009 with the Court of Appeal penalty decision.

Government Contempt for the Rule of Law = Jail Time:

The court ordered jail time for the bureaucrat who was the subject of the contempt of court finding. The option of spending 8 days in jail or 40 hours of community service did not diminish the impact that incarceration could be the clear consequence for a civil servant acting like they were above the law. Feedback to this blog from workers in the department said they were “astonished” by the jail time and felt like they have been “kicked in the gut.”

Well the Court of Appeal just delivered a very loud and clear wake-up call to Alberta’s public servants. That message is that the rule of law trumps administrative complexity and any corporate culture of indifference to the law and ignorance of the law. You break the law or show contempt for the law, you risk going to jail.The precedent is established!

Moving on and Digging Deeper:

While that phase of this sad narrative is essentially over, there are two other fundamental issues that emerge from this litigation that Albertans need to think about. It ought to be a major concern to every Albertan that the actions of some in the Department of Children, Youth and Family Enhancement makes it apparent that they believed they could ignore the rule of law. It makes one wonder what other government of Alberta departments feel the same way. Albertans need to be concerned if their government is willfully blind or just plain indifferent to the impact and import of ignoring the rule of law. The natural consequence of this is chaos like we see on the streets and in the prisons of Iran today.

There is another critical outstanding and largely ignored issue. Where the best interests of the child at the centre of all this controversy served by the system? How do we know the answer one way or another? How are we as citizens to judge and evaluate the actions of those involved in the real case of the real child who is behind the contempt of court concerns?

I intend to investigate and comment on these two issues. In the coming weeks I am going to take you on a journey into facts, implications and consequences of this file. I will be working fromthe court records and anything else I can uncover. I will deal with perspectives on the government being subject to the law and what happened to this child and was it always in his best interest. for the record, I am not hired by anyone to do this. This is a pro bono project pure and simple.

I will try to give you some context and insight surrounding the facts and events and the implications and consequences that flow. I will do this through the eyes of a lawyer and a concerned citizen. I am not trained or experienced enough to judge the quality of the work outlined in the various reports and reviews of this child’s situation on file. However, I do feel qualified to ask questions and to write public policy and political commentary on what I read. I hope to hear blog comments from other people inside and outside government who are in fact qualified to make informed comments on those other aspects.

Telling the Story Behind the Contempt of Court Case and Learning Some Lessons:

I intend to tell the story in a series of blog posts that will be written every 2 or 3 days in the weeks ahead. I will do my best to describe what happened to this child in as much detail as I can under the circumstances. My posts will be based solely on the filed court records and other background material that is in the public domain. There are limitations on what I can say and they will be explained in the next blog post.

Like any good story, there are heroes and villains. But as in any critical and important human condition, it is complicated. It is not all black and white nor cut and dried. There are nuances and interpretations, especially around the question of has the best interests of this child been served. Has our government, the one you and I elected to act on our behalf, done their job, especially about ensuring the best interests of this child? Have the professionals involved made the right tough judgments about these intricate and emotional human conditions? This is not about second guessing or Monday morning quarterbacking. It is a quest for the right questions and gaining a better understanding of the context and consequences to the child in this case.

This series of blog posts will be a case study in process, policy, public interest, professional duty, politics and competing personal interests. It will be a quest for questions about what happened and why things happened the way they did. It will be a chance for Albertans to consider and make suggestions on how to fix the system to ensure our child protection system is improved in ways to better serve the best interests of the child. This has to be done on the ground and in real life, not just in theory or in some departmental business case Mission and Vision statement. It is not easy stuff to deal with so it demands that the best and brightest, most caring and capable people be properly equiped and enabled to do their jobs.

I am isolating one case out of some 13,000 at-risk children who are in some way or other under the care and control of our government. I think there is lots of blame to go around about this child and likely many others that we will never hear about. Confidentiality is a shield and sometimes a shroud.

Much of the blame in this instance has been “fixed” in the contempt of court proceedings. More blame on others may be attributed in the future and the Departments of Child, Youth and Family Enhancement as well as Alberta Justice and Attorney General conduct further investigations. Iwill be monitoring progress on those fronts in subsequent posts as well.

Fixing the Blame is Necessary but NOT Enough to Fix the Problem:

Fixing the blame is fine but it is not the way to fix the problem. Fixing the problem is about attitudes, values, culture and character. Getting serious and being successful about fixing the problem is the real test of our political, governance and policy delivery systems. It also speaks to the character of the citizenship we have in our Alberta society. First we have to really understand the problem or problems to be able to help resolve them. If we don't care enough, then why should our government and public service rise to the challenge to fix the system. After all in a democracy, our government is merely a reflection of us.

We need to be clearer and better informed about what challenges our policy maker, their expert advisers and public servants face on the front lines. What resources, tools and techniques do they have to help them deal with these kids and their troubles and tribulations? How do they solve problems and how can we as a society and as individual citizens begin to help them and the children they care for? How can this be done effectively when there are serious budget cuts coming and staff hiring freezes already impacting the capacity to do the job?

How do Albertans individually and together through social service agencies and government programs help our vulnerable at-risk kids to learn and adapt and become positive contributing members of our society? With each and every one of these children there is a story. Some sadness, some hope, some tragedy and some happiness is likely pervade each one of these young lives as they try to find and make their way in the world. We should not give up on them and we should not write them off.

It's Time for a Public Conversation About At-Risk Children in Alberta

I am looking forward to the journey and I hope you are too. I hope you will read the posts and forward the posts to share them with your friends and family. I also hope you will comment on the blog posts and help create an informative, respectful and enriching public conversation about this file and its larger implications. Albertans need to know more about these larger issues in children youth and family enhancement services. We need to care more about the vulnerable at-risk children who are, in the end result, the responsibility of our society. That's you and me! There is no "them" here.

These vulnerable at-risk kids started out as somebody’s child and some parent’s responsibility. That relationship broke down for some reason or other so now they are our mutual responsibility as a society. They are truly “Society's Children.” So we Albertans have to step up to the plate, learn more, care more, provide the required resources and create capacity for those who out there trying to do the job for these kids. And then we must require more of ourselves, our government and our social services system to do what it takes to effectively serve the best interests of our society’s at-risk children.

Tomorrow I will post some background on the Court of Appeal file on this matter and how I got to read the unexpunged version for background on the coming blog posts. If you are on our Cambridge Strategies distribution list you will be getting regular notices of new blog posts. Otherwise I suggest you subscribe to this blog through the FeedBlitz widget on the righthand sidebar.