Day 6: What Led Up to Mr. Ouellet Being Found in Contempt of Court

One of the most fascinating documents I read from the Court of Appeal file was the transcript of the discovery of Mr. Ouellet, part of the Foster Mother’s application to find him in contempt of court. Examination for Discovery is part of the litigation process to determine facts and other information in a legal action where questions are asked by lawyers and the answers are given under oath. They can become evidence in the litigation.


What Did the Director Know About the Case & When?
I took notes from the transcript and will share the answers and the questions they beg. The testimony indicates some interesting circumstances and realities of the Director’s position, case participation and responsibilities of the office, at least in this case, and presumably others. Remember this saga is all about determining and delivering to meet the best interests of the child. Consider who determines what those best interests are, based on what evidence and how do those responsible actually make the judgment calls about the safety, security and needs of at-risk kids in government care?

Did the Director get Bad Advice?
My impressions from reading the sworn testimony of Mr. Ouellet, I have developed more sympathy for his plight in this case. I think he got some bad advice. He also failed to do his own due diligence in his Director role as he decided to remove the child from the Foster Mother. That failure is not my opinion. That is the opinion of both the original Appeal Panel and the Court of Appeal.

Here is the background and circumstances that Mr. Ouellet found himself in and how he responded, based on his sworn testimony.


According to Mr. Ouellet, he did not know anything about the Court of Appeal order to return the child until a departmental meeting on June 5, 2009. That meeting was called by his staff responding to a Court of Appeal’s letter "clarifying" its outstanding order, from January 30, 2009. The Court of Appeal said its court order meant that the child had to be returned to the Foster Mother. Mr. Ouellet was the senior person in charge and also the official guardian of the child. He said he did not know this matter had been through two levels of court and now going back to court of allegations of his personal contempt of court until June 5, 2009.


What Power and Duties Did the Director Have?
How can there be no such communication to him from his departmental staff or legal counsel who were dealing with the matter, especially given his personal and professional accountability in the case? Is it oversight, lax procedures, poor leadership, poor training, overworked staff? If it is any or all of these concerns, does it all this add up to a serious management and leadership shortcoming in how matters are dealt with in this department? I tend to believe Mr. Ouellet saying he did not know what was happening in this case, since, after all, he was testifying under oath. Perjury is a tougher consequence than contempt.

He goes further saying in the management model in CYSA there is no obligation for workers to inform him as the Director of issues or concerns of any particular matter. The only permissions needed by the social worker and middle management staff are to seek prior permission of the Deputy Minister if the government wants to take matters into litigation.


June 5th Meeting Sealed the Director's Fate.
So let’s look at the events leading up to the June 5th meeting and the actions taken as a result. CYSA received a letter from the Court of Appeal on June 4, 2009 confirming its prior order meant that the child was to be returned to the Foster Mother. The lawyer for the Foster Mother had written to the court requesting directions and clarification of the court order because CYSA had not yet returned the child. That court order had been outstanding and ignored by CYSA for over 4 months by this time.

The June 5th meeting included the Director, a government lawyer and other senior department management people. In requesting the meeting the senior staff said to the Director that they needed to meet about "an interesting and challenging case." Yes indeed it was interesting and challenging but this seems euphemistic considering the seriousness of the matter, especially as to consequences for the child as well as for the Director "best interests" now too.


Four days later an application was made by the Foster Mother seeking an order finding the Director in contempt of court. In preparation for the June 5th meeting the Director was faxed background of the case on June 4th. But he did not read it before or even after the June 5th meeting. Why didn’t he read the file?


Could it be willful blindness, indifference, insouciance, inexperience, naivety or was it neglect and/or negligence? I don’t know, but in hindsight, I am sure the Director wished he had read the material and prepared himself better for that meeting. According to his testimony he was not told about the June 4 letter from the Court of Appeal at the time of the June 5th meeting either. Perhaps it was in the background material, but in any case, it is a very material piece of evidence in the child’s case and soon, in his own contempt of court case.


The Director testified that after the June 5th meeting it was clear that the child had to be returned to the Foster Mother. Curiously he did not direct the staff responsible for the child’s file to return the child. Strange, don’t you think? Well not so strange when you consider this part of the testimony where the June 5th meeting decided that the child should be returned but in this context: "provided all legal avenues had been exhausted." This language indicates a conscious decision to not follow the court order, at least not with any alacrity. That statement is so inappropriate and inconsistent with the rule of law.


What is the Consequence of Ignoring a Court Order?
You don’t ignore a court order – EVER! You can go back to the original judge and seek another order to set aside, vary of discharge the original order. Variations are permitted to correct errors in the original court decisions or to consider and reflect new facts that came to light subsequent to the original order.


Revisiting the court process is not a "do over" or a try again" option. It does not permit anyone to revisit any issue simply because they are dissatisfied with the decision or later thought of a better argument. Otherwise there would be no finality to litigation. This option to go back to the judge to apply vary or set aside the order was open to CYSA but they did not take it. CYSA and the Director had legal counsel throughout these deliberations, so it is not as if they missed knowing about this alternative. Instead they decided to continue to ignore the court order. Shocking!


The Director did acknowledge in his testimony that if he was aware staff was ignoring a court order that is would be "his duty to play a role." Interestingly there was also a statement in his testimony that neither he nor the Director’ office "had a role or involvement in decision making in management of the department." He also testified that a predecessor in the Director’s office had delegated duties to the region child and family services authorities.


But he still had 49 staff under his authority that provided administrative support, analysts and managers all "with a responsibility for provincial policy and direction…and implement provincial policy programs across the province." He said this group monitored standards and process review sections in the department. You would think with that kind of mandate, if any policy or process systems were not working in CYSA, the Director and his team would know about and ought to be doing something about it.


I can muster some sympathy for the Director because he may have gotten bad advice, as Justice Cote mentioned in sentencing in his contempt of court finding. But he was also the architect of his own demise in so many ways. For that he does not get a pass or any absolution just because he may have relied on bad advice. He had a duty to inquire more and it is apparent from the court record that the duty he owed to the child and the duty to respect and enforce the court order was left unfulfilled for too long. He has been in the public service for 32 years and is on the record saying "It’s absolutely essential that court orders be compiled with." His actions in this matter did not reflect his allegiance to that principle.


So with this testimony, it pretty much sealed the Director’s fate that he could be found in contempt of court, and, in the end, he was. He got sentenced to 8 days jail time as a result. He was given the option to do 40 hours of community service in lieu of prison. He also had to pay all the Foster Mother’s costs, including lawyer fees and disbursements, right back to the beginning of this sad and sorry saga. The court, in acknowledgement of Mr Ouellet perhaps getting bad advice from people who were assisting him within the government, allowed those costs to be paid by the government on his behalf.


What Should We Learn From this Case?
In my mind that would be entirely fair under the circumstances. The court also accepted one of Mr. Ouellet’s submissions that contempt of court may also be found against others in CYSA over their handling of this file. As a result, Justice Cote ordered his decisions to be sent to the Minister of CYSA and the Minister of Justice and encouraged them to look deeper into that question. So this aspect may not be over yet. Will that go anywhere? If it doesn’t, it will speak volumes about the character of the leadership in these departments.

I don’t think Mr. Ouellet should be dismissed either. I think he is too valuable as a symbol and talisman to remind people about how much things have to change within the management and leadership culture of this department. He could take this personal experience, and with cooperation of some sound management and some enlightened leadership, turn it into an opportunity to fix the problem. The courts have already fixed the blame on him and encouraged the government to pursue an inquiry about if others are also guilty of contempt of court.


Good people in a bad system are not good enough as an excuse for shoddy management and governance in this case and who knows in how many others in CYSA. Let’s hope there are lessons learned and a renewed commitment to doing this most difficult of public servant jobs both right and rapidly and in the real best interests of children in care. This matter is now about the political will, character of the leadership and personal commitment to do the right thing, especially in times of recession and restraint.


If the future of at-risk kids is determined by dollar costs alone then the social contract of government to society is going to be broken. If that happens then citizens have to respond politically, publically and purposefully and tell our politicians that they have to make sure that our most vulnerable citizens are properly cared for and respected, including those 13,000 at-risk kids in our collective care; who are our society’s children.

Will Wall Street Return to its Old Ways?

Thanks to blogger Albertasaurus Talks I just came across a Toronto Star piece by David Olive entitled "The Era of Big Government Already in Retreat." It is worth a read.

David Olive says "Never in history, perhaps, has avarice spent so little time in hibernation." The meltdown of capitalism last September saw job losses for 7 million people in North America and an "abrupt global credit freeze" that wiped out "trillions of dollars of net worth of retirees and others as stock market property values plunged 40% and more." Olive says "Capitalism failed, again."

"Capitalism had failed, again. If a few avaricious pinheads in the financial markets could wreak such havoc so swiftly on the general population, then we would reinvent capitalism to make it more socially beneficial. It was that belief, of an urgent renaissance on the horizon, that helped keep the terror at bay last winter and spring."

Instead of using this recession to retool and rethink the regulation of capital markets, Olive argues the opportunity is lost and "We have gone back to living in ordinary times." This is because the Obama reforms, according to Olive, have already been stymied by "Wall Street lobbyists" and the argument is reform would be too expensive.

The same people who crated this crisis in confidence in the financial sector blithely discount the trillions of taxpayer bailout dollars for Wall Street in buying up their unregulated "toxic assets" that have devastated the wealth of ordinary people. That has not been too expensive because without real reform to ensure uncontrolled greed and avarice, we will not have learned from these mistakes in governance and be doomed to repeat them.

If Wall Street is allowed to return to business as abnormal without real regulatory reform, we are only one more greed induced disaster away from depression and devastation.

Canadians governments mostly followed the American lead and act as policy takers, not policy makers. Without some serious self-interest to decouple that political and policy approach we too will be sucked into the next American demise. This is not the kind of political discourse that gets sound bites or slogan journalism coverage. It is too complex and confounding to be approached from a simple-minded communications. To happen, it will have to emerge from citizens in op-ed, think-tanks, universities, thought leaders and maybe even a few bloggers.

It is time for some made in Canada and made for Canada economic and environment policy that just isn't American lite. We have done it in our social policy for years. Just look at the differences in health care, abortion, guns, public education, immigration, gay marriage to name a few.

The best chance for this to happen will be in Alberta and British Columbia because they are still exporters of commodities that beg for more local value added production and new markets beyond the U.S. As well the energy commodities produced have significant environmental issues that should and must be resolved locally and aimed at setting new planet-friendly standards globally.

Are Canadians Losing Our Sense of Belonging?

Here is a long but thoughtful and relevant essay about how we Canadians are coming to see ourselves. Social cohesion is a key to effective citizenship. This Valpy essay courtesy of the Globe and Mail is a good reflective Sunday morning read.

Alberta Budget Cuts Coming - Can We Do Them Better This Time?

Well we are going ot see a $430M set of budget cuts this fiscal ending March 31, 2010and a requirement for an additional $2B in the year after that. Lets hope this time we do the cutting judiciously and strategically so we maintain key programs and services, especially to vulnerable Albertans.

Already we are seeing cutbacks in departments and memos are coming out from Deputy Ministers with staff directives eliminating overtime, out of province travel and so forth. This is all consistent with the fiscal update announcements earlier this week. It should not be a surprise.
Here is a window on "yesteryear" back in 2001 and a memo from Richard Ouellet, the fellow in Children's Services who was recently found in contemtp of court. It was a cost cutting exercise then, just as we face now. Question is, have we learned anything from those past experiences? This time can we avoid the kind of damage done to kids and others like the last time government had to impose budget cuts? Time will tell, but are you optimistic?


> From: Richard Ouellet
> Sent: November 16, 2001 11:42 AM
> To: Interim - CFS10 All
> Subject:
>
> 16 November 2001.
>
> To all staff.
>
> Bill has asked me to share the following with you on behalf of the
> Management Team. As Bill mentioned in his letter to staff yesterday we
> need to continue to scrutinize expenditures to meet our budget targets.
> In order to achieve this it is critical that we continue to assertively
> implement cost management strategies that have been developed over the
> past several weeks. These strategies are based on the principle that any
> changes will not affect the safety of children.
>
It is imperative that all staff are aware of, understand and support
> these strategies. The next few months will require your help to ensure
> that we continue to provide quality and responsive services to the
> children and families we support.
>
The first phase of our cost management involved a structural review
> of our organization. While there are a few areas yet to be completed we
> have made significant progress in reducing the administrative costs of the
> Authority.
>
A second key element of our strategy was the development of a Cost
> Management document that was distributed to all NCCYFs and CFRO in early
> November. I encourage you to read the document and discuss these
> strategies with your manager and co-workers, as well as bring forward any
> other ideas you may have.
>
The third phase has been a detailed review of all contracted
> services which has resulted in the reduction or termination of several
> Agency contracts and a request for a 1% reduction in contract costs for
> the remaining agencies. While these adjustments have been difficult we
> have remained true to the underlying principles inherent in the four
> pillars of our service plan. I have provided each NCCYF and CFRO manger
> with a copy of the attached listing of Agencies who received notice of
> contract reduction or termination on November 15, 2001. I should note that
> while the notice was given yesterday the effective date for the changes is
> February 15, 2002.
>
We know there are a lot of pressures on you, your peers, on
> agencies, stakeholders and the community. These have not been easy times.
> Management is asking a great deal from you and it is important for you to
> fully understand the measures being implemented and how they will affect
> you and the people we serve. We are confident that together we can
> achieve our goals.
>
> M. Richard Ouellet

Isn't it interesting how the more things change the more they stay the same. Lets hope we are wiser this time in how we implement program cuts that in the Klein days. I am optimistic by nature but will be watching carefully to see if my faith is well founded.

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.