ONTARIO C.A.S. ATTITUDE: WIN CHILD WELFARE CASES AT ALL COSTS.
Tammy Law's delusional thoughts, excuses, rationalizations and justifications for using the Motherisk test to justify denying parents due process and circumventing the Constitution, the Charter of Rights and the principles of fundamental Justice behind the closed doors of Ontario's family courts.
Posted on February 27, 2018 by tammylaw
After 2 years, and the review of more than 1200 cases, the Motherisk Commission came out with its report yesterday. The Report is required reading for everyone who has any role to play in child welfare – social workers, lawyers, courts, litigants. It describes a system that is dysfunctional, unfair, and undignified. In addition to its criticism of how CASs have handled drug addiction, the Commission details years of rights infringements by courts.
If the same problems were identified in criminal court, there would be a huge public outcry.
I want to be clear about what I think some of the fundamental problems are and how I think we can start to change this system. Because I am first and foremost a lawyer, my thoughts naturally focus on the role of lawyers in this mess. My thoughts are summarized as follows:
As lawyers, we need to recognize that good intentions are not enough. It is really easy to hide behind “the best interests of the child” and agree or acquiesce to all types of infringements of our clients’ basic human and Charter rights. This needs to stop. Lawyers need to start seeing their role in the context of defending our clients’ very real rights to human dignity and security of the person.
The culture of cooperation has gone too far. While I agree that it is very very important to work with the Children’s Aid Society to address their concerns, a line must be drawn when they demand cooperation that crosses the line. As a state agent, the Society has an obligation to ensure that it works in the most minimally intrusive way possible – respecting the client’s right to individual freedom while trying to ensure that its clients are served. This is a difficult job. Lawyers and courts should be there to ensure that the fine line is respected.
Society counsel need to understand that they have a public interest role. They should be providing advice to their clients in the context of being a public interest litigant. They have a duty to the court to be fair. This means that if unreliable evidence is being tendered (and there were many signs of this with respect to the Motherisk testing), they should be advising their clients about the unfairness of relying on it. Lawyers are and should be gatekeepers of evidence as much as courts are.
We need to be more vigilant. As noted in the report, our role as advocates is to raise every defence possible for our clients.
HOW ABOUT PRESENTING EVIDENCE THAT COUNTERS SWORN AFFIDAVITS WHEN CLIENTS HAVE IT IN ABUNDANCE... JUST SAYIN'..
Our clients are often extremely vulnerable, having lived lives that were challenged by multiple obstacles. Many have made admirable attempts to parent their children. We need to be fearless in our advocacy for them. As a lawyer, I have experienced and seen derisive, sarcastic, or rude comments directed at myself and other lawyers who attempt to defend their clients. This needs to stop. It’s our client’s right – their children’s right – that they have a full defence.
By Gene C. Colman of Gene C. Colman Family Law Centre posted in Child Welfare on Thursday, January 1, 2015.
It should not be a matter of "win" or "lose" when it comes to Ontario child welfare law. Ontario's Child and Family Services Act tells us that the paramount purpose is to "promote the best interests, protection and well being of children." One might note the glaring lack of any reference to family. In fact, there is a paucity of references to family throughout the entire CFSA even though many judges recognize the importance of maintaining family whenever possible.
I had a recent experience with CAS counsel at court when representing a family unjustly caught up in the system. Our office had prepared a very persuasive and comprehensive response to the Society's Application. We attended at the mandated five day hearing that follows apprehensions from parental care. The CAS certainly had not expected such forcefulness; normally parents are so overwhelmed at this early stage that they are unable to mount an effective defence. Generally, the court will rubber stamp the CAS requests. We did not agree to just stand idly by at the first appearance and CAS counsel was surprised by our aggressive (yet fair) approach.
Our written material seemed to have persuaded the judge. He instructed the lawyers to prepare a consent endorsement along the lines that we were seeking (which of course included an immediate return of the children to parental care). As we were returning to the courtroom after preparing the consent, the experienced and respected CAS counsel turned to me and my clients and remarked: "This is the third time your lawyer has beaten me."
The CAS counsel's comment was made innocently enough and indeed was intended to be complimentary. But still I was shocked (but probably should not have been). Why was I so shocked?
Description: Transcript of April 8th, 2014 “In Focus” interview by Bob Perreault from Lake 88.1 FM in Perth and Andreas Von Cramon, Supervisory Duty Counsel Criminal/Family Law and Nathalie Champagne, District Area Director, Ottawa Region.
Anderas von Cramon Supervisory Duty Counsel Family, Criminal Law in Brockville, Lanark, Leeds and Grenville and is married to the CAS in house lawyer for FCSLLG, Karynn Von Cramon.
FCSLLG Manager of Legal Services Karynn Von Cramon
$112,779.01 ($158.34 per hour)
Anderas von Cramon operates a free family law clinic for families dealing with the CAS out of the courthouse to provide advice to people and to help them to prepare for family law cases, or to try to resolve their family cases outside the court. (sign consent forms and service agreement)
Parents go in praying for competent representation and good advice and instead get someone willing to bill legal aid to guide the parents through the process of having all their rights, dignity and children stipped away from them. According to legal aid right now family lawyers willing to accept legal aid bill an average of $40 000 dollars per case for not filing documents or filing them after the court has already granted the society a supervision order.. Or the society requests the judge order the parents to sign consent or service agreements after the parents have refused to sign anything and the judges oblige the society by ordering the parents to just cooperate.
Anderas von Cramon also gives basic help drafting documents. Basic means what? It means no help swearing in and filing documents or serving the document before the deadline - which means he does less than nothing.
I'm willing to bet if we could check no one Anderas von Cramon has ever "helped" has ever had anything filed before or after the deadlines have passed..
Just by failing to file the required paperwork by the deadline before a first appearance in family court on a child protection matter will potentially earn a legal aid lawyer a minimum of $40 000 according to legal aid Ontario.
It's almost like the government pays them to stand aside and do nothing.
Does Ontario's CAS Show Signs of Intentional Confirmation Bias?
Confirmation bias, also called confirmatory bias or myside bias, is the tendency to search for, interpret, favor, and recall information in a way that confirms one's preexisting beliefs or hypotheses.
Although not a formal logical fallacy, confirmation bias is simply the tendency for individuals to favor information or data that support their beliefs. It is also the tendency for people to only seek out information that supports their a priori, or pre-existing, conclusions, and subsequently ignores evidence that might refute that pre-existing conclusion.
Technically, confirmation bias is a type of cognitive bias and a form of selection bias, which seeks data that confirm the hypothesis under study.
Avoiding confirmation bias is an important part of rationalism. The scientific method, itself, was developed to remove biases. In science, it is achieved by setting up problems so that you must find ways of disproving your hypothesis (falsifiability: A statement, hypothesis, or theory has falsifiability (or is falsifiable) if it can be proven false by contradicting it with a basic statement or observation.)
There’s not much worse governments can do to people than take their children away, but the pure horror of it does not seem to have pervaded the public conscience.
Not one charity, church or person has come forward to offer any relief to the many victims traumatized by the treatment they received at the hands of their fellow Canadians citizens and no apologizes offered to anyone but gay couples waiting to adopt..
Between 2011 and 2013 the 46 separate societies at the time investigated a combined total of 42 000 families or about 14 000 investigations per year, in 2014 - after the Peel Memo Leak - and launching a new government funded advertising campaign and reopening 20 000 previously closed files the societies investigated a combined total of over 82 000 families to meet their funding goals in a single year as reported by the Toronto Star.
Is the high cost of clean water and hydro putting your family at risk of CAS involvement?
The effect of provincial policies on struggling families was especially apparent in the late 1990s, when the Conservative government slashed welfare payments and social service funding while at the same time, it introduced in child protection the notion of maltreatment by “omission,” including not having enough food in the home and this after giving the society what amounted to an unlimited funding scheme. The number of children taken into care spiked as did their funding.
“The ministry has been pretty clear with us that advocacy is not part of our mandate,” Goodman said speaking for the society. “It’s not like they’re asking for the (poverty) data. They’re not.” Goodman then when on to suggest the silence suited the government more than the silence suited the society's funding goals.
Either way, it was bad news for underprivileged Canadians in Ontario who are at the highest risk of unwarranted intervention by scheming child poaching CAS funding predators..
March 14, 2013
In leaked memo, Peel CAS staff asked to keep cases open to retain funding due to a $67 million dollar province wide funding shortfall . The memo was signed by seven senior managers, using their first names only. One had her full name listed. Hmmm, I wonder who could be evil enough to sign her full name???
March 15, 2013
Province in talks with Peel Children’s Aid Society over strategies to defraud the tax payers in leaked memo and Ontario's Liberal government agrees to pay for CAS advertising campaign to help the society meet their funding goals... Report any suspicion equals any excuse will do.
Though the CAS claimed the purpose of the memo wasn't to inflate numbers, between 2011 and 2013 the 46 (at the time) separate societies investigated a combined total of 42 000 families or about 14 000 investigations per year, in 2014 - after the Peel Memo Leak - and launching a new government funded advertising campaign and reopening 20 000 previously closed files the societies investigated a combined total of over 82 000 families to meet their funding goals in that one year as reported by the Toronto Star.
Mary Ballantyne, CEO of OACAS said there was more context going into the decision making process than met the eye..
SO, WHAT HAPPENS THE NEXT TIME THE CHILDREN'S AID SOCIETY COMES UP SHORT?
"No one should be surprised that agencies like CAS are taking extreme steps to ensure they meet their funding goals" said Carrie Lynn Poole-Cotnam, Chair of the CUPE Ontario Social Services sector.
Conservative children’s services critic Jane McKenna said the memo’s optics are “terrible” and “reflect poorly on not just the CAS but also Wynne and the Liberal government, which bears ultimate responsibility for child welfare in Ontario.” She then went on to say, “These are desperate people doing desperate things.”
Minister MacLeod’s announcement to cut social assistance rates by 1.5 per cent will take approximately $150 million out of the hands of people who are among the most vulnerable in Ontario.
“People on social assistance continue to live well below the poverty line and would have used the additional much-needed money to pay for basic necessities,” says Jackie Esmonde, Staff Lawyer at the Income Security Advocacy Centre (ISAC).
Important reforms to meet the unique needs of Indigenous communities have also been put on hold. Ending these changes will have a very negative impact on people experiencing the deepest poverty in our province and demonstrates a profound disrespect for the needs of Indigenous people in Ontario.
Minister MacLeod also cut or cancelled other positive changes that were slated for this fall, including:
Reducing the amount of money that people on Ontario Works (OW) and Ontario Disability Support Program (ODSP) can keep in their pockets while working.
Cuts to other allowances such as the guide dog benefit for people with vision impairments and the advanced age allowance for people who are older.
Cancellation of a change to the definition of “spouse” from three months co-habitation to three years.
Cancellation of full basic benefits to people who get housing and food from the same provider, including many people living with disabilities.
Cancellation of increased support to people living in Northern Ontario, where daily living costs are higher.
If you have any practice questions or concerns related to the new CYFSA, please contact the Professional Practice Department at 416-972-9882 or 1-877-828-9380 or email firstname.lastname@example.org.
ONTARIO HUMAN RIGHTS COMMISSION.
To file a human rights claim (called an application), contact the Human Rights Tribunal of Ontario at:
If you need legal help, contact the Human Rights Legal Support Centre at:
Toll Free: 1-866-625-5179
TTY Toll Free: 1-866-612-8627
To recognize the broad harm caused by the unreliable Motherisk hair testing, the Commission considered “affected persons” to include children, siblings, biological parents, adoptive parents, foster parents, extended families, and the bands or communities of Indigenous children.
This Report is dedicated to everyone who was affected by the testing.
Motherisk is a symptom of a larger problem in child protection work.
The Motherisk scandal came about because of the failure of the legal system to protect parents and families. Somehow, the society has forgotten that the desire to do good cannot be done at the expense of rights violations.
The balance between protecting children from the risk of harm and protecting parents' and children's basic rights to fairness is a challenging one.
It is easy to fall too heavily on the side of overriding a parent's rights in favour of alleged efficiency and expediency. But to ensure that something like Motherisk never happens again, it is something to which everyone involved in child welfare — lawyers, judges and caseworkers — must strive.
The Charter of Rights and Freedoms guarantees procedural fairness when the state interferes with fundamental personal rights, such as the right by parents to care for their children.
Ironically enough, the issue of taking body samples (such as hair for testing) without proper consent for the purpose of criminal investigations was found to be an infringement of the Charter 20 years ago by the Supreme Court.
It is unconscionable that these protections are available to accused persons, but were never considered applicable to parents at the mercy of child protection services in the family courts.
There is nothing new about the commission's finding that many parents were explicitly or implicitly told that there would be negative consequences if they did not undergo hair testing. In fact, this type of coercive action continues to happen: parents are often given messages that if they do not consent, for example, to a finding that the child is in need of protection, that there will be negative consequences. For example, they may be prevented from bringing further motions, or — more damning in CAS work — labelled as being "uncooperative."
“Motherisk testing was imposed on people who were among the poorest and most vulnerable members of our society, who were targeted with scant regard for due process of their rights to privacy and bodily integrity,” because they couldn't fight back the report states.
“The parents who were tested were powerless to resist as their rights were ripped out by the roots along with their children by child poaching funding predators.
Tammy Law is a lawyer practicing in child protection, family and criminal law in Toronto.
This column is part of CBC's Opinion section. For more information about this section, please read this editor's blog and our FAQ.
One would have thought that post-Motherisk, we would want parents and children to have more procedural protections and safeguards, and yet, it looks like the opposite is happening again.
“Harmful Impacts” is the title of the commission report written by the Honourable Judith C. Beaman after two years of study. After reading it, “harmful” seems almost to be putting it lightly. The 56 cases the commission examined in which the flawed Motherisk tests, administered by SickKids Hospital between 2005 and 2015, were determined to have a “substantial impact” on the decisions of child protection agencies, led to children being permanently removed from their families.
The report also points to the larger problem that allowed the the CAS's use of the Motherisk lab to cause so much damage: the system unfairly targets poor families — especially, the report details, Indigenous and racialized families; the legal deck is stacked against those families, denying them due process to a staggering degree; and authorities are too quick to take children from their parents in the absence of evidence of severe abuse or neglect.
Removal from the home — permanent removal — is not supposed to be a move taken lightly. The report goes over the legal principles, laying out that it should be a last resort. It is the “capital punishment” of child protection, according to one citation, absolutely devastating to parents, and for children it is “often the beginning of a life sentence.”
Yet in the cases reviewed here, it is imposed, often apparently cavalierly and without even a trial, for reasons that amount to a punishment for being poor.
Rich parents who are alcoholics, after all, are not having their children taken from them after a single relapse. Few rich parents, in fact, are having their children taken from them at all.
Lives were ruined. Parents’ lives, and quite possibly children’s lives. Siblings and grandparents and other family members’ lives, too. Irreversibly ruined. And in many cases, it seems this was allowed to happen primarily because people were poor.
It is hard to think of anything more harmful than that.
The Motherisk lab was shut down in 2015 — too long after the problems with it were known, exposed in part due to the reporting of my Star colleague Rachel Mendleson, after far too much damage was done. But reading the report, it becomes clear that shutting down the lab solves only one small part of the problem. The entire system needs to be overhauled.
The problems detailed in the report’s 278 pages are too numerous to go into in detail. They document the many problems with the SickKids lab’s testing and with the child protection system’s overreliance on those results. The hair testing process produced inconsistent and untrustworthy results despite being perceived as carrying the unimpeachable weight of scientific authority. That much we pretty much knew because of earlier reporting, though the detailed breakdown of it and the specific case references make the injustice of it sickeningly vivid.
“There are lots of kids in group homes all over Ontario and they are not doing well — and everybody knows it,” says Kiaras Gharabaghi, a member of a government-appointed panel that examined the residential care system in 2016.
Short video. Remember Motherisk: Helped or Traumatized?
Report of the Motherisk Commission:
The Honourable Judith C. Beaman
February 2018. Available in French.
This report is available at Motherisk Commission
© 2018 Ministry of the Attorney General