A New Democrat MPP says he will ask the Ontario Judicial Council to investigate the actions of the judge who granted custody of a 7-year-old Toronto girl to a woman accused in her death if Attorney General Chris Bentley refuses.
“I was loath to do that. I wanted this to be dealt with in the most professional way, which is why I referred the matter to the AG,” says Peter Kormos, the NDP’s house leader and justice critic. “But I feel obliged to do it myself if in fact the AG won’t. It’s not something I do lightly, and I’m loath to second-guess judicial decisions.”
Kormos sent a letter to Bentley that suggests proceedings regarding the custody of Katelynn Sampson “reveal an alarming absence of any consideration of the best interests” of the girl.
“Justice [Debra] Paulseth appears to have dealt with the matter of this child’s custody in a cavalier and overly casual manner,” wrote Kormos, an Osgoode Hall Law School graduate and former criminal lawyer. “She did not employ any of the tools available to the court to determine the appropriateness of a proposed custodial parent.”
Sampson was found dead, with signs of trauma on her body, on Aug. 3 at 105 West Lodge Ave., according to police. The home reportedly belongs to Donna Irving and her partner.
Irving, 29, who in June was granted custody of Sampson with the approval of the child’s mother, has been charged with second-degree murder. Irving’s partner, Warren Johnson, 46, has also been charged with second-degree murder.
Sheamus Murphy, a spokesman for the vacationing Bentley, tells Law Times the Courts of Justice Act prohibits the ministry from passing a public complaint along to the judicial council. The ministry must respond to such requests by informing individuals how to go about lodging a formal complaint on their own, he says.
The ministry complied with that requirement last week, says Murphy, by sending Kormos a letter.
Kormos, however, says the ministry has the power to refer complaints to the judicial council, although it is “extraordinary.”
Kormos tells Law Times he found the content of transcripts from three custody hearings involving Sampson “very disturbing in terms of the absence of any inquiry into the background of any of the three adult parties. No inquiry into the reasons for the natural mother wanting to surrender up her child. And certainly, no utilization of the powers under the Children’s Law Reform Act, which permit the judge to order an assessment of the potential custodial parent, amongst other things.”
Kormos says, “While on the one hand, some may view matters on consent to be rather perfunctory, here, it’s the welfare of a child that’s being dealt with. And the court, in my view, has a very high standard that it should be meeting.”
The province’s judicial council should review the matter, says Kormos, to decide if Paulseth met that “high standard.”
“Because if the judge is deemed to have met that standard, then we’d better start amending the law,” he says.
Kormos acknowledged that family courts are “stressed” and facing “huge dockets,” and that judges and staff are “working very hard.” But he says a judicial council review will provide a platform to describe what the standard is for such matters, which will benefit everyone involved.
Asked for the ministry’s take on Paulseth’s actions surrounding the matter, Murphy responds that the ministry “respects the independence of our judiciary,” and is trying to learn as much as possible from Sampson’s tragic death in terms of improving the protection of children.
It’s best left to Bentley to respond to questions of whether changes are in order for the province’s child custody system, says Murphy.
Martha Mackinnon, executive director of the legal aid clinic Justice for Children and Youth, which represents youths aged 18 and under, says Paulseth in fact acted more thoroughly on the Sampson custody transfer than some judges traditionally have.
“There are transfers of custody where when they’re done on consent of the custodial parent and the receiving person, sometimes there are no appearances in court at all,” says Mackinnon.
“If these had all been middle-class people and nothing had gone wrong, those same parents would be yelling if the state said, ‘You need to have an assessment done,’” she says.
Mandatory criminal background checks have been aired as a needed change to the system, says Mackinnon. But she says many “pretty adequate parents” have criminal backgrounds.
“And all of that stuff would be seen as very intrusive, and unless we want to go back to the actual origins and say taking a course is mandatory in elementary and again in secondary school, and you can’t have a child without a licence, then we don’t actually have standards of what parenting looks like. So it’s very hard to say.”
Mackinnon says the law “seems to treat the child as property that can be passed around.”
“I would infinitely prefer a process in which judges have the capacity to listen to what the child says,” says Mackinnon. “I would like more involvement of all children in processes that so deeply affect them as custody.”