Reasonable Doubt: B.C government needs to address Ministry of Child and Family Development shortcomings

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      Lately, the news has frequently been dominated by coverage of Alex Gervais’ death and earlier ones of children in the care of the Ministry of Child and Family Development. Yesterday (October 8), the Vancouver Sun cover story was of the tragic suicide of a young woman after she “aged out” of provincial care at the age of 19.

      For those unfamiliar with that terminology, children under the MCFD’s care cease to receive benefits or assistance of any kind upon their 19th birthday. They are left largely, if not completely, to their own devices. It’s an unthinkable place to be for any young person, much less the children taken into the MCFD’s care, who often do not have family to turn to or support systems that many of us benefit from.

      There are two guiding principles in government foster care. The first is the parens patriae notion. That is the concept that the crown is ultimately responsible for children falling within its jurisdiction. This dates back centuries to England, when the crown had more than a nominal role in government.

      The second and principle is that the MCFD must act in the best interests of the children under their care, consistent with the standard of a “prudent parent”. If they fall below that standard, then they will be liable for a child’s losses.

      The Supreme Court of Canada has granted the greatest of importance to the protection of children and the role played by government. Nonetheless, these appear to have fallen on deaf ears, or at least the ears of politicians who do not truly care.

      The jurisprudence of our courts is replete with admonishments of the MCFD’s shortcomings in caring for vulnerable children. Yet, the message does not seem to reach politicians, who have money to shut down Burrard Street Bridge for yoga, but not to properly fund the ministry charged with protecting children.

      I can do no better than to the quote the Honourable Mr. Justice Parrett in R. v. Cook. There, a child was left with parents by the MCFD eventually died after his parents left him tied to a bed for three days. While sentencing the father for his crimes, the judge went out of his way to comment on the numerous failures by the MCFD in that case to make any real investigation of a child in need of protection and who could not be located:

      “I am at a loss to understand how it is that case after case similar to this has surfaced in this region over the years

      "The cathecism of the approach it seems is always the same. At first, there is sound and fury at least partly fueled by the media. This is followed by the announcement either of an investigation or that problems have been fixed or are being addressed, usually by some high level official. Silence then returns until the next incident demonstrates yet again that nothing has changed”.

      I have been involved litigating cases with the MCFD for children who suffered harm in the MCFD’s care. My clients’ privacy and the law prevent me from specifically discussing the matters I have seen, but I feel compelled to offer some general comments based on the hundreds of hours I have spent working on these files:

      The problems are long standing and of a similar nature. This includes workloads far, far greater than what is considered generally acceptable by independent experts, making it impossible to effectively care for children. As a result, social workers and the MCFD often place administrative efficiency above their obligations to foster children.

      Placing Alex Gervais in a hotel was likely an example of that. Would any “prudent parent” leave their 18 year old to live in a hotel? Is that anyway to raise a young man to become a functioning, contributing citizen? I strongly suspect that the ulterior or subsconscious motive in doing so was to wait for him to “age out” so that the MCFD social workers’ case load could be lightened to address the influx of further vulnerable children for whom they are ill-equipped to care by virtue of their funding and workloads.

      The problem is not a lack of resources at the government level. It is a lack of political will to allocate those resources to something that does not get votes or political exposure the way that paying Roberto Luongo $160,000 to promote the B.C. Lottery Corporation or $64 million on government advertising seemingly intended to refurbish the B.C. Liberals’ troubled brand.

      If a child launches a lawsuit for compensation as a result of harm suffered while under the MCFD’s care or supervision, the government will spare no resources aggressively litigating the matter. Many would liken it to the same staunch defence that insurance companies put up. However, that would be unfair. Insurance companies litigate with their own money and take a more rational approach than the provincial government, who have the privilege of litigating with other people’s (taxpayers) money. They do not care how much time or money is spent defending the action and are willing to spend more resources defending a claim than it would take to settle the matter or find a way to help the child cope with the consequences of the MCFD’s shortcomings.

      Not in B.C. Here, MCFD workers and lawyers externalize blame, often on children and parents, as we recently saw in the JP case. Instead of accepting that mistakes had been made and focussing resources on addressing those concerns, the MCFD have appealed Mr. Justice Walker’s very detailed decision. I hasten to add that while they may disagree with the degree of negligence and misconduct laid upon them, it would be narrow-minded and arrogant to suggest that the MCFD could not have done things better, particularly when a child was sexually and physically abused.

      Now, despite longstanding issues going back decades, the government is refusing to call a public inquiry into the MCFD’s shortcomings. While many rightly question the benefit in a public inquiry, one cannot doubt that negative publicity often leads to concrete actions. I am confident that a public inquiry would expose widespread and longstanding shortcomings that would shock the conscience of British Columbians.

      The government claims it is committed to resolving the serious shortcomings in the system. Sadly, given their history, I have more faith in Justice Parrett’s prediction than I do in government promises.

      Michael McCubbin operates a busy litigation practice in downtown Vancouver, focusing on criminal, constitutional, and administrative law. Reasonable Doubt appears on Straight.com on Fridays. You can send your questions for the column to its writers atstraight.reasonable.doubt@gmail.com.

      A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.

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