Globe and Mail

Top court rules legal aid must help poor parents fighting state for custody

Devastating cases trigger constitutional right to security of the person

KIRK MAKIN
Justice Reporter
The Globe and Mail
Saturday, September 11, 1999

Legal aid plans must supply funding to indigent parents who risk losing their children to the state, the Supreme Court of Canada ruled yesterday.

In a powerfully worded decision, the court said the prospect of losing one's children is so psychologically devastating that without such funding, a parent's constitutional right to security of the person would be violated.

Writing for a 9-0 majority, Chief Justice Antonio Lamer said bureaucratic penny-pinching is intolerable when the stakes are so high. He said wardship proceedings can be so intricate, hard-fought and have so much impact that it is essential parents be properly represented.

"I have little doubt that the state removal of a child from parental custody . . . constitutes a serious interference with the psychological integrity of the parent," the chief justice wrote.

"The interests at stake in the custody hearing are unquestionably of the highest order. Few state activities can have a more profound effect on the lives of both parent and child."

The case centred on a New Brunswick single mother, Jeannine Godin, whose children were moved from one foster home to another by child-welfare authorities for 18 months. They were finally returned to her in 1995.

Legal experts said yesterday's decision will provide an invaluable foothold in the battle for access to legal aid and may presage other incursions by the courts into steadily eroding legal aid programs.

The experts said that by expanding the Charter of Rights guarantee to life, liberty and security of the person to include psychological harm, the case may be applied to secure legal aid funding for immigration and mental health cases -- and perhaps even for parents fighting one another for child custody.

"I think the judgment could have enormous implications," said Alan Gold, president of the Criminal Lawyers Association. "We have a clear signal that whenever the state is attempting to take custody of someone, that person -- or anyone with a close interest in them -- is entitled to legal aid."

Carole Curtis, a family law expert who represented the Women's Legal Education and Action Fund in the case, said the concept of security of the person had previously been more or less limited to prisoners.

"The court has gone way further now than saying it applies only to jail," she said in an interview.

Ms. Godin's children were seized on Nov. 12, 1993, by the New Brunswick Ministry of Health and Social Services on suspicion that she was not a fit mother.

Denied legal aid, Ms. Godin was forced into the courtroom on her own. With the pro bono help of a Fredericton lawyer, Tom Christie, Ms. Godin, 35, fought until her children were returned in June, 1995.

"I haven't stopped crying since I heard the ruling," a weeping Ms. Godin said in an interview yesterday. "There are no words to say how delighted I feel. Nobody should have to go through what I went through.

"There were a lot of lies and misleading information in my case, and I was just a single mom with three kids who didn't know how to represent myself in court. You shouldn't have to be a criminal to get legal representation."

The ruling represents the court's strongest statement on legal aid since the inception of the Charter of Rights in 1982. Ms. Curtis said the wardship issue was ripe for litigation, since the vast majority of those who have their children seized are poverty-stricken single mothers with limited education.

"They are really, really disadvantaged," she said. "The idea that they could ever represent themselves effectively in wardship cases is ridiculous. And wardship cases are the capital punishment of family law. They are the worst it can get."

In yesterday's decision, Chief Justice Lamer said there are certainly times when the state protects the best interests of a child by removing the child from the home.

However, removal is such a dramatic intrusion that it should only be done under the fairest of procedures before an impartial arbiter, the court said. In the absence of reliable legal representation, it said, there is a serious risk that the child itself could be harmed by an erroneous decision to remove it from its home.

The court also said the stigma of having a child removed is an extreme attack on a parent's sense of worthiness and self-identity.

"Besides the obvious stress arising from the loss of companionship of the child, direct state interference with the parent-child relationship -- through a procedure in which the relationship is subject to state inspection and review -- is a gross intrusion into a private and intimate sphere," it added.

However, Chief Justice Lamer warned lower courts not to trivialize the concept of "psychological integrity" by using it to strike down all manner of laws and regulations.

New Brunswick cut legal aid for family law matters drastically in 1993. Cynthia Davis, a government spokeswoman, said yesterday it will take a couple of days to assess the implications of the judgment.

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