Protecting the most vulnerable

When Ontario’s Child, Youth and Family Services Act came into force this past April, it was with the express aim “to be consistent with and build upon the principles expressed in the United Nations Convention on the Rights of the Child.” Canada ratified that convention in 1991.

“The Government of Ontario acknowledges that children are individuals with rights to be respected and voices to be heard,” reads the opening line of the Act’s preamble. It was praised as promoting the right of children to be listened to, consulted and connections maintained to their communities.

In November, a new provincial government announced that the Provincial Advocate for Children and Youth Act, 2007 would be repealed and the Office of the Provincial Advocate for Children and Youth, first opened in 2008, would be closed.

The move left Ontario as one of the few jurisdictions in the country without an official child advocate.

A look at child protection across the country shows a system that is struggling to better protect children and youth. An estimated 90 per cent of Manitoban children in care are Indigenous. And a coalition of Ontario family lawyers are decrying the use of summary judgments in child protection cases, saying they deprive parents of the right to be heard at trial in cases where a children’s aid society has moved to apprehend the children.

But recent or pending legislation seeks to strengthen the rights of the child, including the benefits of keeping Indigenous children in their own communities. In addition to Ontario’s child-centric Child, Youth and Family Services Act, changes to the Divorce Act in Bill C-78, which also are expected to be passed into law in 2019, are child-focused. And the federal government has recently proposed legislation that would let Indigenous governments in Canada have control over child welfare.

“In Canada we’ve kind of lagged on children’s rights issues,” says Mary Ellen Turpel-Lafond, a professor of law at the University of British Columbia and B.C.’s first Representative for Children and Youth, an independent position reporting to the Legislative Assembly that she held for 10 years. “There’s lots of work to be done.”

“The most vulnerable citizens”

In December — just weeks after Ontario announced it was shuttering its Office of the Provincial Advocate for Children and Youth — Manitoba’s child advocate released a report describing the tragic story of a 17-year-old Indigenous girl, identified only as Angel, who had died of a drug overdose. During her short life she had had 46 foster-home placements, had been repeatedly sexually abused and exploited from the time she was a toddler, and had tried to commit suicide when she was just 11 years old.

“Her story as you read it is one that stands out as a shocking reminder that too many children and youth in our communities are subject to immense trauma and taken too soon,” Manitoba child advocate Daphne Penrose was quoted as saying after releasing a 117-page report in mid-December on Angel’s death.

Her recommendations called for provincial officials to develop trauma prevention strategies with experts in childhood trauma and to ensure appropriate interventions were made to address “the trauma crisis” in Manitoba.

The announced closing of Ontario’s child advocate office leaves Canada’s most populous province with Nova Scotia and Prince Edward Island in not having a child advocate, and Ontario’s Office of the Ombudsman, where the child advocacy services will be moved, will not likely fill the gap, say experts.

“If you’re a teenager or a tween [in state care], a worker gives you the child advocate’s number,” says John Schuman, a family lawyer at Devry Smith Frank LLP in Toronto with expertise in child protection proceedings. “You speak to someone who understands you’re a kid, and the situation you’re in. The person there can understand why you’re there. They get what’s going on. It’s a system that would be geared towards kids as the Kids Help line is geared towards them.”

Now, says Schuman, a child or youth may call the provincial Ombudsman’s office and the person on the other end of the line may or may not have appropriate training, understand the situation or have a background in dealing with kids or understanding their needs. The Ontario government’s move means “total inaccessibility to kids,” he says.

Turpel-Lafond says there are two reasons why a child advocate’s office is important and should be independent; first, she says, individuals want to access a service with an appearance of independence that is able to serve their population. Second, to create such an office, legislation must be tabled in the assembly, which draws legislators’ attention “so they can stay focused and engaged” with child welfare, she says.

“Sometimes when government decides to cut back, children and youth are on the chopping block first,” she adds; yet her experience as B.C.’s child advocate, from 2006 to 2016, shows that this is short-sighted. Turpel-Lafond says that prior to her appointment “they had shut the office down [and] the situation quickly careened into a crisis.” She was charged with cleaning up the mess and addressing all the outstanding files, including those for 900 child deaths, and complaints that children hadn’t been well-served.

“I’ve opened an office after B.C. made the same mistake that Ontario is making now,” she says.

“My guess is that when it comes time to cut funding, [governments] look for community services,” says Rollie Thompson, a family law professor at Dalhousie’s Schulich School of Law. “In an underfunded system like Ontario’s, this is not good news.”

Another factor in closing advocate offices, he says, is that governments don’t like “anyone looking into our child protection laws. It’s wrong-headed,” he says; governments don’t want people to be critical of their protection of children, “but they severely underfund child protection. Child and youth advocates will inevitably point out problems,” which “put governments on the hot seat.”

Turpel-Lafond points out, too, that children are too young to have a voice in the public sphere. “Two-year-olds don’t write to their legislature and hold a march,” she says, yet they are “the most vulnerable citizens.”

The absence of a national children’s commissioner has been a repeated concern, she adds.

Summary judgment

Summary judgment in child protection cases has become more widely used in Ontario than in other jurisdictions, and last year the Ontario Association of Child Protection Lawyers intervened in an appeal of a case, Kawartha-Haliburton Children’s Aid Society v. M.W., in which the respondent appealed from an order granting summary judgment in a child protection hearing to determine whether her six children should be made Crown wards.

“The use of summary judgment motions has increased exponentially over the years,” says David Sandor, founder and president of the OACPL. Although summary judgment is more expeditious and therefore less costly to the court system, “the only opportunity that parents have to challenge the [Children’s Aid] Society’s evidence is at the cross-examination stage,” Sandor says.

When a summary judgment motion is made, “parents can’t challenge evidence in the same way, or truly assess demeanour,” which places them at a disadvantage when their children may be at risk of being apprehended.

Although the Supreme Court of Canada’s 2014 decision in Hryniak v. Mauldin did not concern family law, it emphasized the value of summary judgments in reducing the length of time of proceedings and the attendant costs, says Nicholas Bala, a professor at Queen’s University’s Faculty of Law in Kingston, Ont., and an expert on issues related to children, youth and families in the justice system.

“I think wisely and correctly both child protection agencies in Ontario … have been making more use of summary judgment in child protection cases,” Bala says. He says this is specifically used in cases where the Children’s Aid Society views parents as incapable of caring for their children. “Very likely the lengthy hearings harm the children who need placement, and it’s costly for the CAS, Legal Aid and the courts. So, a move to summary judgment is appropriate.”

Thompson says Ontario is “a unique creature” in using summary judgment in child protection cases so frequently, which he attributes in part to Ontario’s courts being over-burdened.

“In most other jurisdictions, you can get to trial in a reasonable period of time,” he says. “In Nova Scotia, we have strict timelines, and our judges meet them. But Ontario is a big province, with many languages and cultures, and it’s much more difficult; [the judicial system is] also under-resourced.”

Toronto family lawyer Schuman notes “a big disparity” in how busy judges are across Ontario, and while “anything that expedites the process is good,” he says, he also notes that many people involved in the child protection system “don’t feel they’ve had a chance to present their case, and often they don’t.” It is also often easier to accept defeat if they’ve had a judge listen to them, he says.

Where the chances for parents succeeding in court is low, though, because of disastrous or abusive parenting, “there won’t be any other decision made than that the children should be Crown wards,” and summary judgment makes sense.

First Nations and child protection

The legal system has grotesquely underserved First Nations families, to the point of crisis, says Turpel-Lafond. “The court system doesn’t work for First Nations children and families.”

In Manitoba, 90 per cent of children in care are Indigenous; in other Western provinces the figure is about 80 per cent, she says, and is significant in other provinces, including Ontario; “it’s astounding.” The first five calls to action of the December 2015 report of the Truth and Reconciliation Commission addressed Aboriginal child welfare and called on the government to reduce the number of Aboriginal children in care.

Schuman likewise notes the destructive legacy for Indigenous parents who passed through the residential school system and had only a terrible experience of what “parenting” should be.

“When you talk about helping Aboriginal families parent, there are Aboriginal parents today who are in abusive relationships because their parents were abused from residential schools. If you don’t understand what’s going on, you miss the main problem,” underscoring the importance of culturally sensitive Aboriginal children’s aid societies, which in Ontario have been established in Toronto and Durham region, he says.

The evidence points to the importance of keeping Indigenous children in their own communities, at least, or in other Indigenous homes. In the Winnipeg case of Angel, the Indigenous teenager who accidentally overdosed, Assembly of Manitoba Chiefs Grand Chief Arlen Dumas said after release of the child advocate’s report that the girl’s death pointed to the need for First Nations to have jurisdiction over Indigenous families and children.

As president of the Canadian Council of Child and Youth Advocates, Turpel-Lafond says “we pushed for legislation to be strengthened” to benefit Indigenous children and families, which has borne some fruit. The federal government’s proposed legislation last February would allow Indigenous governments control over child welfare, along with education and health care; Minister of Crown-Indigenous Relations and Northern Affairs Carolyn Bennett is expected to develop this new legal framework.

“The legal developments with respect to children and families are significant, but they are fragile systems,” says Turpel-Lafond. “If one small thing changes,” such as a reduction in legal aid services, “these all have such a huge effect in the lives of people.”

Editor's Note: this article was corrected to clarify that the Ontario Association of Child Protection Lawyers was not formed to intervene in the appeal of Kawartha-Haliburton Children’s Aid Society v. M.W. In fact, the OACPL was formed in May 2017.