Ottawa Citizen
Wednesday, December 19, 2001

A very timely question about the 'best interests' of a child

Dave Brown
The Ottawa Citizen

Child protectors claim to make decisions they believe to be in the best interests of the child. Ottawa lawyer Jeremy Dolgin is struggling with this question: How it is ever in the best interests of a child to take her from her parents when there's no abuse or neglect, and there's a court order to contend with?

In this case, court orders give liberal access to the father. He made arrangements to have five-year-old daughter spend Christmas with him. Mother discussed arrangements and all was set to go.

Children's Aid Society learned father lives with his father, and believes grandfather could be a risk to the child. That information was passed on to mother and she was told: Don't go through with the arrangements. Don't allow the child to be unsupervised around grandfather. Either get a supervision order or keep the child.

To deny father access at Christmas would be a breach of a court order. When mother tried to change plans the result was a complaint from father to police. Ottawa police dropped around to mother's home and told her she could be arrested for breach of a court order.

That brought lawyer Dolgin into play. Mother called him in considerable distress, crying and asking for help. His thinking was that if Children's Aid Society feels the child is at risk, it should seek a change in the court order. Mother doesn't have the financial resources to jump into this fight on short notice, and is waiting for a decision from Legal Aid as to whether it will fund the action. She has a job, so there's a good chance she won't get funding.

The way the system thinks: Mother has legal custody of the child so is responsible for her safety. If for any reason, including a shortage of money, she can't protect the child, the agency will step in and protect. To do that it will first take the child into custody. The child will be placed in foster care while lawyers do what lawyers do.

Child protectors can hang their stockings and sleep easy knowing they can't be held responsible for failing to protect a child. Lawyers can sleep in peace knowing they can't make the system move any faster than it does. Judges all nestled in their beds will get to it when they can.

One answer would be for the protectors to send in a lawyer to protect. That would be a bit like a neighbour getting involved.

Legally, the agency can make decisions like this only for children in its care. It would first have to take the child into care. It could then be in the position of being forced to pull a five-year-old child away from her mother right at Christmas.

Mr. Dolgin, meanwhile, can only move to protect his client, and that's mother. He has written the Ottawa agency to insist that any more dealings with the mother go through him. He says to the CAS: "I look forward to your thoughts on how this situation could be avoided in the future."

It's in the best interests of the agency to let the lawyers handle it. It's in the best interests of the lawyers to go slow. It's in the best interests of the courts to go slow to make correct decisions. All can claim to be acting in the best interests of the child.

Suggestion: Send a CAS lawyer to talk to mother and between the two of them make a determination to keep the child with mother while they sort this out.

This is similar to what happened in a case of bad housekeeping. Two years ago Ottawa CAS took a gaggle of children into custody because the home they were in was, from a cleanliness standpoint, out of control.

No argument there. I saw the house.

While the parents frantically shopped for a new home, the children were scattered through half a dozen separate foster homes and had the services of as many CAS caseworkers.

No help was provided to the parents, either financially or in the house-hunting field. Yet Mother and father can sit down with a calculator and show how the system could have saved a ton of money by helping the family stay together.

Or, as the mother in this case put it: On an hourly basis, housecleaners cost a heck of a lot less than lawyers.

Dave Brown is the Citizen's senior editor. Send e-mail to dbrown@thecitizen.southam.ca

Read previous columns by Dave Brown at www.ottawacitizen.com

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