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.

Alberta Minister of Children Youth Services Reaches Out.

It is good to see the Minister of Child and Youth Services Alberta (CYSA) responding to the various events that impact from and to the department. Here is a copy of an email that I received from an anonymous source that I understand is from the Minister and distributed to the department:

"A number of incidents involving our ministry have placed us in the news headlines since the beginning of the year, including the death or injury of children in care, youth in care being charged with serious crimes, and issues such as the recent contempt of court ruling by the Alberta Court of Appeal.

These matters and the resulting attention and criticism in the media have an impact on your daily work. I know what it is like to open the newspaper or turn on the radio and hear a report claiming that our system for serving children and families is not working properly.

I want to share with you action that our ministry has been taking following these occurrences, to continue ensuring the best possible outcomes for children, youth, and families in Alberta.

Those of you working directly with children and families, and those of you that support staff who do, understand that the troubling cases reported in the media are the exception and not the rule. During times when there is more media and public attention on the work of our ministry and its staff, it is important to not be distracted but continue focusing on developing and delivering the highest-quality supports and services to the thousands of Albertans who rely on our help.

Our policies and processes are based on leading practices nationally and internationally, and following them makes good sense, since we know they are rooted in evidence-based research. At the same time, it is essential to never stop looking for ways we can make our systems even stronger. In fact, this has always been at the heart of how this ministry does business.
• A number of initiatives are currently underway to achieve that goal including:
• A recently announced review of our child intervention system, chaired by leading child intervention experts, who will examine current child intervention practices, identify leading practices from other jurisdictions, and suggest ways our system may be further strengthened.
• Examining the way our ministry administers the court orders it receives through a review being done with Alberta Justice and Attorney General.
• Reviewing and developing recommendations to strengthen the kinship care program.
• Looking at the multi-disciplinary team process that is part of the Family Support for Children with Disabilities Program.

These activities are over and above the regular reviews and adjustments to our policies and practices, which happen on a continuous basis in our ministry.
Despite our best efforts the reality is there will be times where our systems may not work as well as intended. As ministry staff, you see first hand our policies at work. If you have suggestions on how our policies or practices can be improved, I encourage you to share them with your supervisor.

I feel fortunate to be part of a team that makes such a profound and lasting positive difference in the lives of thousands of Albertans. Please accept my continued thanks and appreciation for the hard work you do for children and families.

Honourable Janis Tarchuk, Minister"

I have asked questions and raised concerns about the corporate culture of CYSA in recent posts. So it is good to see the Minister reaching out. It still begs the questions if the CYSA system is inadequate or the people are ill-prepared or insufficiently resourced to do their job there are serious problems in meeting the legal obligations to the at-risk children and youth they are supposed to be helping. If the staff lacks confidence in the departments leadership then there are very serious problems in work place.

The GOA did a "Corporate Employee Survey" in December of 2008 for each department. Here are some interesting findings for the 1,433 staff of the CYSA. While 76% of department staff were "overall satisfied" to be a GOA employee only 64% of CYSA employees were "satisfied" with their ministry or department. Not good but better than 2006 when only 61% were satisfied with the department.

CYSA staff feelings about being "valued as a GOA employee had only 53% strongly or somewhat agreeing, 31% strongly or somewhat disagreeing and 16% in the neither category. Not a very good work situation obviously.

Only 54% felt the department felt that they were helped to understand how their work "contributes to government business plan goals" and 58% believed they understood the same about the department's business plan. Only 51% believes there is an effective internal communications process in CYSA. Is that reflecting alienation of staff or indifference of leadership and management or both?

We live in rapidly changing times and CYSA's work has to be amongst the most volatile in government services. That said only 52% of staff felt they got the support needed to adapt to changes in the job or work environment and only 50% felt senior management demonstrated interest in the well being of employees and 49% believed they received meaningful recognition for work well done. Only 44% of staff felt that they were asked for employee input about plans for business improvements and that the management and leadership could make timely decisions. OUCH.

It is not all bad news for CYSA. Mostly this department is slightly below the averages of all GOA employees in most categories but when it is bead it is significantly bad. On the positive side a full 92% feel they "have a positive working relationship with coworkers and 84% are satisfied with the quality of service provided from their own work unit. 80% indicated they had confidence in the direct supervisor. It is worth noting only 64% felt that others outside their immediate work unit provided high quality service. Strange disconnect there I think.

There is a recently announced GOA hiring freeze. I wonder how many vacancies exist in CYSA that may be critically needed for people to do their job? Only 56% felt they could retain needed department employees and only 48% felt they could attract needed employees too.

There is obviously a great deal to do to improve these numbers and to better position the department to do its job. I will pose a number of question in a rage of theme areas in future posts that I hope will help Albertans consider in how they might evaluate that repositioning. The credibility gap between the leadership and field staff is the most obvious.

So good start with this email to the department Minister Tarchuk. It is going to be a long row to hoe so please don't think the job of closing the gap between the senior management and your leadership is done with one email.