Monday 14 December 1998
The loopy logic protecting our childrenDave Brown
The Ottawa Citizen
It's 11:10 a.m. on Nov. 27, and a woman is standing in front of a judge in courtroom 26 at the Elgin Street courthouse. "This is a settlement hearing. Settle it. Give me back my kids. Now!"
I'm the only spectator in the room, marvelling at how far she has come. She's been fighting the system for seven years, and by her count, this is the forty-fifth judge she has appeared before.
It started with a telephone call in 1991, made by a babysitter with a vested interest. The parents were out of the country. She whispered the words sex abuse and became the paid foster parent of their three children, and still is. At the time, the oldest was four. Best guess is that they are worth between $60 and $100 a day to her, tax free.
Seated beside the woman in the courtroom is her husband. At their feet are two huge legal file carriers. For five years they've allowed me to scan each piece of evidence as they sorted it. Like quick-draw artists, they can flick a hand into those cases and prove every claim they make.
The files reveal the loopy logic that too often drives the child protection industry. They document problems that horrify responsible social workers. The field isn't licensed, but a social worker has powers similar to those of a police officer. There's little accountability when someone makes an error.
Because it's a Children's Aid Society case, the couple can't be identified. Lawyer Bob Morrow is representing the CAS. He asks for a delay of at least 20 days. He gets seven. The next step is to present the court with lists of witnesses. Then comes a trial management session. Then more court proceedings.
Three sheets of paper in one of those cases show how far off the logic trail the system has wandered. First is an application to the Criminal Injuries Compensation Board of Ontario, made by a CAS caseworker on behalf of three of the couple's children in its care. The compensation is for alleged criminal assault. A second shows $18,000 was paid to the children, to be held in trust by the CAS. The third is a letter to the father from the compensation board, demanding that he repay the board.
He has never been charged with that crime, and there is no evidence to suggest that he should have been. The children were taken into custody through family court processes, where there is no burden of proof and personal opinion and hearsay from caseworkers and psychologists may be accepted as evidence.
If allowed to proceed -- and it appears they can't be stopped -- this couple will prove that we, as a society, went wrong when we allowed family courts to abandon the concept that people are innocent until proven guilty. The result is that the rights of parents have been suspended when dealing with child protection agencies.
If the CAS in this case had been required to follow rules of evidence demanded in other courts, taxpayers would have saved a fortune. Instead, the state is supporting four of the couple's children in foster care, and spending a bundle in lawyers' fees.
In 1993, the couple's five-hour-old daughter was taken out of the nursery at the Civic Hospital by a caseworker exercising her power to take into custody a child she considered to be in a dangerous environment.
A hospital nursery? Dangerous?
Another example of loopy logic: Mother gave birth to twins Jan. 17 at the Grace Hospital. The CAS has now applied to family court for a protection order for the twins. When a caseworker makes such an application, the court must be assured the children are currently in a safe place. The application gives that assurance, saying they are with their parents.
These are the kinds of actions that discredit the child protection system. These are also the actions of people who don't know when to give up, and that is the definition of fanatic.
One judge is on record as saying it no longer matters why the children were taken into custody. All that matters now is that the courts act in the best interests of the children. Interpretation: If we admit an error you might be able to sue the system.
At first, the parents tried to get their children back by co-operating with the CAS. They offered to open their home to inspection but couldn't get a social worker to come to the house.
Three years into their struggle, the couple abandoned lawyers. Lawyers are trained to operate within a system, even if the system is flawed. With family and friends supporting them, the couple set up a state-of-the-art photo copier in their living room, got a fax machine, and counter attacked. They used the same ammunition that had been used against them; endless paperwork and legal processes.
Court records show the foster mother denying that she called the child protectors. She told a lawyer, who told a caseworker. That's followed by the lawyer denying that she made such a call. That's followed by a judge saying: "It must have been Caesar's ghost."
The couple is now preparing subpoenas for many of the people whose names appear in their files. They want to cross-examine the psychologist who submitted a strange report to the courts. He examined their then four-year-old son and, among other things, had him play with a toy snake. From the way the boy held the snake, and from the look on his face, the psychologist concluded there was some kind of sexual release. In the weird logic that permeates the whole system, it was entered as proof the child had been sexually abused.
The parents want to cross-examine dozens of caseworkers, lawyers, and "experts." They are after those who, in court records, have branded the mother a prostitute, drug addict and alcoholic. The father is in records as a pimp, child sex abuser, pornographer and other things that could sway the opinion of a family court judge.
Not one of those accusations has been proven, and after knowing the couple for five years, I know they are untrue.
Their counter-attack has panicked the child protectors. They have been dragged into too many different courts too many times, and have left a paper trail of what is being pursued as perjury. Records show caseworkers answering yes in one courtroom, and no to the same question in another.
Those with the most to fear are social workers; dozens of them. They have created a maze of paperwork they won't be able to find their way out of. One problem will be finding these people. Not one of those who gave opinions against the parents or drove the system that took away their children, is still in the child protection business.
While listening to the judge scold both parties for failing to meet deadlines, my mind drifted back to Feb. 3, 1989.
Family court Judge Garry Guzzo furiously threatened CAS officials for disobeying and changing his court orders.
I was there because a man called me for help. The single father had voluntarily placed his son in CAS care, and his visits were being cut. Yet the most recent court order in his file was from Judge Guzzo ordering the CAS to allow more visits.
The man was illiterate but not stupid. He didn't qualify for legal aid, so I did the paperwork that got him back in front of the judge. There was an explosion from Judge Guzzo. He threatened to issue an arrest order for the deputy minister of the Ontario Department of Community and Social Services. "Someday, somebody who knows what he's doing is going to come along," he told the CAS lawyer, "and I warn you now, the suit is going to be astronomical."
It was in courtroom 26.
Tomorrow: Feeding the foster care industry.
Copyright 1998 Ottawa Citizen