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Motherisk case shows cracks in child welfare

An Ontario judge has found that two lawyers provided incompetent counsel while representing parents in a family law case that he said shows the broken state of the child welfare system in Canada.

Motherisk case shows cracks in child welfare
Steven Benmor says an Ontario Superior Court Justice’s criticisms of the child welfare system in the province are accurate.
In C.A.S of the R.M. v. C.T. and J.B., Ontario Superior Court Justice Grant Campbell determined that the parents received incompetent counsel from lawyers Brigitte Gratl and Jane McKenzie. Gratl represented the mother in the case and the father retained McKenzie. Both were retained through Legal Aid.

The case, which was heard in Kitchener, Ont., concerned a since-debunked Motherisk drug test that the mother took, which resulted in her child — identified as K. — being removed from her custody in 2012. The case languished through the system for years, and it became what Campbell described as a perfect storm of “errors, incompetence, institutional oversights and mistakes,” which left the child in a “legal limbo,” where neither parent had contact with her.

In his 101-paragraph decision, Campbell said the parents and K. “have been consumed and trampled by the Frankenstein process we have created and allowed to become unmanageable.”

He painted a dark picture of the country’s child welfare system, where judges and courts are scrambling to keep up and the few private counsel that will take these kinds of legal aid cases are completely overwhelmed. He said the system’s process is underfunded and overworked and has been exacerbated by last year’s R. v. Jordan decision in the Supreme Court of Canada.

“The child welfare system in Ontario is broken,” Campbell wrote.

“The patchwork of child welfare legislation spread across Canada is not working.”

Campbell apologized to the parents “on behalf of the very system that perpetrated this upon you.”

Lawyers say Campbell’s decision is unusual, as rather than simply making a ruling on narrow legal issues, the judge took the opportunity to comment on the system at large.

“He revealed the underbelly and the weaknesses of the family court system,” says Steven Benmor, a Toronto family lawyer, who was not involved in the case.

Benmor says Campbell’s criticisms of the child welfare system are accurate when it comes to Ontario, as the system is broken when it fails even one family.

“When these people fall through the cracks, it reveals a weakness in the overall system,” he says.

Campbell found that both Gratl and McKenzie had “dropped the ball” in their handling of the case and that they both failed to register their clients’ objections to delays and procedural unfairness.

“The transcripts appear to show that both parent’s counsel had no plan/nor any or much preparation to do anything positive for their clients, other than cross examine (at length) whatever evidence the Agency brought forward,” Campbell wrote.

“The overall picture appears that both counsel effectively conceded the result of the procedural delays and the status quo that had been established.”

The parents filed a long list of complaints against the two lawyers, which included that they had ignored instructions, been unprepared, shown an unwillingness to consult or explain and had even showed disdain for their clients.

Campbell found that McKenzie had failed to zealously represent her client’s interests throughout the trial and ignored the father’s indigenous heritage.

Campbell also found that Gratl took no steps to get a competing drug test to challenge the Motherisk one.

Nor did she bring a motion before the court concerning the mother’s indigenous heritage, which would have affected the child’s placement.

Campbell found that three and a half years had elapsed from the time K. was taken from her mother and when the trial judge issued her decision, which he said was “not only entirely unacceptable, it is reprehensible.”

The judge also found that the trial process was “unfair, unjust and skewed against the parents.”

“The integrity of the administration of justice was compromised by this trial and brought into disrepute,” Campbell said.

While Campbell found that the trial judge’s decision was unreliable, he declined to set aside the decision and issue a new trial, as he determined that would further harm the stability of the child, who was set to be adopted by a foster parent. He did, however, order that the parents be given contact to the child.

Alison Scott, executive director of Family and Children Services of the Waterloo Region, says there were things her organization could have done better in the matter.

“When there were delays in this case, we probably should have taken a much more assertive approach in keeping the best interests of the child at the forefront,” she says. She added that the organization is looking to make sure to ask enough questions from families up front in order to make sure it finds out at an early stage whether the family has indigenous heritage.

Julie Kirkpatrick, who replaced Gratl and represented the mother on appeal, declined to comment on the specifics of the decision, but she says it was a thorough decision.

A lawyer representing Gratl declined to comment as “the matter is still before the court.” McKenzie did not respond to a request for comment.

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