Ottawa Citizen
Wednesday, March 20, 2002

Children's Aid Society censured for putting a child in limbo

Dave Brown
The Ottawa Citizen

The Ottawa Children's Aid Society came within a whisker of setting a precedent by being the first child-protection agency to be hit with a contempt of court conviction.

Both sides are claiming the win in what amounts to a hollow victory for both. The CAS was not found guilty of a contempt of court charge, but was ordered to pay the other side's costs.

The contempt of court motion was filed by a father over his newborn daughter. He said Ottawa CAS failed to obey court orders issued by Judge Maria Linhares de Sousa that his daughter be turned over to his care. He asked the judge to order the society to comply with her first order for care. The CAS responded with a notice of appeal but 20 months later the appeal was still hanging because the society didn't do further paperwork.

Father then launched his contempt of court motion. Court records identify the father only as "Mr. S." He was represented by lawyer Danielle Dworsky and the CAS lawyer was Christine Lacasse.

Starting at the beginning: On Sept. 23, 1997, caseworkers took the baby into custody from a hospital nursery 15 days after her birth. Her unmarried mother was willing to give her up but the father wanted his child. The CAS took the view he lacked parenting skills and didn't have a proper home for her. Father didn't disagree. He asked for time to prepare.

He took parenting courses and faithfully showed up at the CAS for his regular allotted three-hour supervised visits. When his parenting ability remained in question, he took more courses. Also, he had trouble preparing a home that met with the approval of child protectors.

Judge Linhares de Sousa noted that as he improved conditions, he "continually asked that he be given more time with his daughter ... and that visits commence in his home." The society refused.

The CAS was operating beyond the limits of the supervision order of Judge Linhares de Sousa. It expired in May 2000, but the society refused to turn over the child. At that point the judge found a loophole. At the expiry date the CAS was still not satisfied that the home met its approval. Father asked for two months to make things right. In effect he agreed to the delay, putting the court order into a grey area.

The judge ruled the agency couldn't be in contempt of an order when the order had expired. That didn't change her view that the CAS was too slow. "This is unacceptable and not in the best interests of children," she wrote. "It goes against the intent of the Child and Family Services Act where time is of the essence.

"The society by letting the permanency planning for this child remain in limbo so long ... allowed an existing order to expire without any further process. It has behaved unreasonably and unfairly to Mr. S. by prolonging the matter by not perfecting the appeal in a timely manner.

"It has not conducted these proceedings in the child's best interests."

Early in the hearings, the judge and lawyers agreed they could find no cases where a CAS was found to be in contempt of court. This wasn't to be the first one, but it was as close as it gets. In January, the judge ordered the society to pay the father's costs of $5,000.

The term "hollow victory" came from lawyer Dworsky this week when asked to comment. A former CAS lawyer, she has a reputation as a passionate defender of parents' rights. The child had been in care for so long that even the father had to concede it would not be in her best interests to be uprooted and placed with a man who was little more to her than a frequent visitor. Adoption will proceed.

Ms. Dworsky says the decision to go ahead with the contempt motion wasn't easy. "My client was in limbo and the society wouldn't budge. It wasn't complicated. The child should not have been in custody. Contempt was my only recourse."

So, in the end, even though they lost, the child protectors won.

Not so, says Ms. Dworsky. "It has been shown that there has to be accountability in the (child protection) system."

In December 2000, this column reported a case where three sisters were in CAS court limbo for three years. Wilson McTavish of the Office of the Children's Lawyer in Toronto has called for less limbo time for children in CAS cases.

Dave Brown is the Citizen's senior editor. Send e-mail to dbrown@thecitizen.southam.ca Read previous columns at www.ottawacitizen.com .

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