Reasonable Doubt: Coercion and the loss of all privacy if you’re a parent

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      I have spent the majority of my career practicing criminal law. I was well versed in Charter rights that protect people from state intrusions on people’s privacy. In fact, I have written extensively over the past two years on this topic in this column.

      So nothing prepared me for what I was to encounter when I packed it all in, moved back to Vancouver Island, and opened my own shop offering services in many different areas including family law.

      What I have quickly learned is that in family disputes involving the state, as a parent, you have no expectation of privacy: no expectation of privacy in your body, no expectation of privacy in your home.

      While both these places are sacrosanct in criminal law and the state must go above and beyond to show why they are entitled to search either of those places, they mean nothing in family law.

      In disputes with the Ministry of Children and Family Development, the parent as defendant has so few rights and little power that most of the time they are expected to comply with extensive invasions of their person and their home. If they do not, the ministry will take their children.

      Let me give you an example for the uninitiated on how this all works.

      If you have a nasty dispute with your neighbor and your neighbor calls the ministry to allege that you use drugs and hit your children, this goes into the ministry's file. A social worker will be sent out and an investigation conducted. They will speak to your children, neighbours, teachers, and other undisclosed “partners in the community”. You will have no opportunity to find out who said what in order to respond to any allegations or negative reports made against you.

      From this spiteful allegation, huge consequences may result and, without opening up your home to the ministry and volunteering to be drug tested, you may find it difficult to defend yourself.

      If the ministry does not like what they see and hear when they enter your home, it may take your kids. If there seems to be some substance to the allegations of drug use or hitting your children, it can apply to the court for a Supervision Order or simply remove your children.

      A Supervision Order will last for about six months and can include extensive random drug tests and frequent checks by social workers in your home any time during the day, evening, or weekend. If you breach any condition of your Supervision Order, the ministry can take your children.

      Random drug testing for a specified period can be an onerous obligation and seriously impede on your attendance at work. A parent under such an order must call a drug testing facility every weekday morning for a specified period. Each day they are told whether or not they have to be tested. If they are, then they must attend a specific facility at a specific time. If for any reason they cannot make it that day, then it is considered a positive test.

      Often I hear from an aggrieved parent that he or she doesn’t care if the ministry gets involved as he or she has nothing to hide. This is an extremely short-sighted position to take.

      Whether or not you have anything to hide is not the point. Often most people won’t even know if they have anything to hide; furthermore, a stupid mistake or a busy day can put you in breach of your Supervision Order.

      A Supervision Order requires a parent to be under the microscope, and it gets tiring really quickly. If a parent cracks under the pressure, the penalty is having their children removed from their care.

      Having the ability to live our lives behind closed doors in the manner we see fit is one of our fundamental rights and freedoms that dates back to 17th-century English common law. It is such a basic understanding of how we live, that we don’t often consider how it would be if this freedom were not a part of our social fabric.

      And if you are to be judged, who are the judges?

      The worst part of this set-up is that the people controlling the decisions of the ministry are social workers; largely over-worked, burnt out, and displaying signs of tunnel vision that naturally comes with enforcement type positions. They don’t like you, they’ll take your children. You don’t play nice, they’ll take your children.

      The social worker’s opinion and understanding of a situation reigns supreme. There is little oversight by lawyers for the ministry to offer some sober second thought. Ministry lawyers tend to have large caseloads and leave much of the fact analysis to social workers. In criminal law, fact analysis is utterly in the hands of the Crown, which has spent years in school and the courtroom critically analyzing facts and law for a living.

      Its difficult to articulate how utterly unbalanced the power dynamics are in a dispute with the Ministry of Children and Family Development. In criminal law, we check and balance the power of the state by engaging in the trial process. It’s not perfect, but at trial, the weaker party is given their opportunity to make full answer and defence. Each party has the opportunity to lead evidence and test evidence; evidence is assessed for its reliability and credibility.

      The problem with court battles in ministry family cases is that the penalty comes first and opportunity to defend yourself comes second.

      During initial stages of the court process, the parent has little opportunity to test evidence against him or herself. A parent’s true opportunity to defend him or herself will depend on the court schedules and when there is an available court date, which usually months down the road. As you know, our courts are incredibly back-logged, which means parents suffer penalties for extended periods of time until the court can accommodate their hearing.

      It’s a nasty pill to swallow. Unfortunately, this is the only way that we have figured out to protect our children from abuse or neglect.

      In principle, it makes sense. The state should be empowered to do what needs to be done to protect the vulnerable. The problem lies in the execution, the lack of independent oversight of social workers decisions, and the inability for parents to have their say in a timely way and in a manner that carries some weight. 

      Comments

      25 Comments

      M. Jones

      Aug 17, 2013 at 8:46pm

      The vast majority of people have no clue how easily their children can be apprehended, and what agonizing torture it is trying to get their children back. Children in foster custody suffer greatly because of the trauma of being apprehended, but also because of the ongoing trauma of being separated from all they know and love.

      It's true there may be foster house people who are kind (but ignorant of the true nature of MCFD), who try to treat these children well, but it is also true that foster housing is a hellish experience for far too many children.

      The inevitable argument that MCFD and their supporters use is that they are "damned if they do, and damned if they don't" (apprehend). This is incorrect. If MCFD doesn't apprehend and something bad happens, all it does is generate publicity that makes the vast majority of people more inclined to see child abuse everywhere they look, more inclined to call the child abuse hotlines, and more inclined to call for even more draconian laws against parents.

      MCFD apprehends children they shouldn't and - in relatively rare cases of parental abuse - they seem to favour leaving the children in blatantly dangerous situations. What MCFD needs to do is stop basing their budget on how many families they rip apart, and instead base it on how many they keep together. For certain, if the latter was the case, apprehensions would plummet, as would the heartbreak and despair of countless families and children.

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      Beyond Hope

      Aug 17, 2013 at 9:01pm

      You've barely touched the surface of the iceberg that is MCFD and parents are the Titanic. As soon as MCFD becomes involved, you are in deep. You'll be lucky if you survive it emotionally. If you are not mentally ill when MCFD shows up, the trauma they cause will give you a mental illness - PTSD, anxiety, depression. Or they will label you with one of their pet diagnoses without even having you see a psychiatrist or psychologist for a proper diagnosis.

      MCFD is sucking the lifeblood out of parents, children, and the budget. $2 Billion dollars and they still cry poverty. Don't believe them when they show up. They lie - to parents, to children, to judges, and to themselves.

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      maureen hart

      Aug 17, 2013 at 9:08pm

      This is so true it hurts if only it would get through to the state officials I don't know what it is gonna take to dismantle DCF and rebuild it the right way

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      Mir

      Aug 17, 2013 at 9:12pm

      Amen! Let's hope Stephanie Cadieux has the ability to see change in this department. The average British Columbian would be horrified at the injustices carried out against families in the name of 'the best interests of the child'.

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      Tammy Lynne

      Aug 17, 2013 at 9:28pm

      "Often I hear from an aggrieved parent that he or she doesn't care if the ministry gets involved as he or she has nothing to hide. This is an extremely short-sighted position to take." T.L. This statement is very true I used to think exactly like this when I was a young mother and deemed aboriginal. It was not until I was deemed aboriginal did I have a bad experience with them. When I was younger that is a different story. Now this "child snatching epidemic stemming from the residential schools is affecting everyone . In around 1991 I was doing research and was horrified when I found out I was part of a statistic as I was researching by having the ministry come for my son. All those feeling of when I was apprehended the fear, racing heartbeat all returned and I was literally shaking as I was trying to confront this women who was bent on taking my son. Then she brought her supervisor to "support" her efforts. Or at least have him taken from me. Just like the residential schools they did not care just as long as the child was removed from the mother. They support parent alienation and all other "fund driven tactics. This is an issue we are struggling as a community to identify and defend against these tactics. Please come join our candlelight vigil on this October 15th at Robson Square 8pm meet up and 9pm to ligth 1050 candles for the children that died in care last year. We are going to light candles for the children that have lost their lives in care and the ones suffering because in care right now.

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      Charles Ford

      Aug 17, 2013 at 10:35pm

      Too many lawyers today are cut from the same cloth, a drab, conformist, politically correct uniform. Watch this one, for she's got brains and guts, a rare combination in the legal profession.

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      Sarah

      Aug 18, 2013 at 1:07am

      Bravo!This is a fantastic article. But, as someone above me posted, it barely scratches the surface of how absolutely powerful the MCFD machine is and how relentless is is once it has decided to destroy your family.

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      Phoenix

      Aug 18, 2013 at 2:28am

      Can you please write an article on the "risk of harm" clause in the child and family service act. It states you dont actually have to hurt your child, all across Canada (except Quebec) has this rule, and they can take your children because there is a CHANCE you MAY hurt, neglect or could possibly harm your child. People NEED to be made aware!

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      Pat Turner

      Aug 18, 2013 at 6:28am

      While I believe this article is extremely well written, it doesn't even scratch the surface on a lot of the issues. Like how statistics show kids are far more likely to be abused in state care then with parents (EVEN if the parents are bad) how in Ontario, they are not even social workers doing the investigations, in Ontario it is a PRIVATE company, NONE government run (yet government funded) therefore the Ombudsman, MPPs etc cant investigate, no one to complain to, how the children in their care loose all their rights, end up in the criminal justice system etc etc etc. The damage that foster care does to a child, let alone the parents. The labeling that happens as a result, and how they literally don't need any "evidence" yet you have to attempt to discredit them when most judges just rubber stamp whatever they want. Also, they can take your kids forever on a "risk" that something "might" happen in the future, you could of NEVER done ANYTHING wrong, literally EVERYONE'S kids are at some possible risk. Your best defense is to secretly record these people at ALL times this is legal under section 183 of the Criminal Code of Canada. There are 2 groups on facebook that tend to be very helpful for parents as well, Canada Court Watch and Stop the Children's Aid Society from taking Children from good parents. It is time they were abolished in my opinion. Punish the crimes AFTER they happen (as child abuse is a crime)

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      John Ranger

      Aug 18, 2013 at 7:21am

      Exactly what the United Nations in Geneva describes as Human Trafficking = << the RECRUITMENT, transportation, transfer, harboring or RECEIPT OF PERSONS (CHILDREN), by means of the THREAT or USE OF force force or other forms of COERCION, of abduction, of FRAUD, of deception, of the ABUSE OF POWER or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation >>.

      In other words, - "once a Canadian CPS (Child Protection Services) sets its sights on you and your family...... << ITS OVER >> because they'll use any excuse to TAKE your OFFSPRING and knowingly end your child's and your peaceful harmonious and prosperous lives as you knew it ..... it's - done deal - finito - hasta la vista baby .......... WOW! Welcome to No, not TOYS R US .... it's the Canadian made CPS = "LAWS? WHAT LAWS? R US".

      ..... and it's all done WITHOUT you having any type of a "fair opportunity to << BE HEARD IN A CANADIAN COURT OF LAW >>.... which is a complete breach to anyone's CONSTITUTIONAL RIGHT to be protected from VIOLATIONS of << procedural fairness - natural justice >>.

      WOW, so a Canadian lawyer finally wrote something to EXPOSE how children, parents and families are being horrifically EXPLOITED in Canada? WOW, that's amazing! We have about 100,000+ attorneys in Canada, - AND NOT ONE OF THEM HAVE EVER BROUGHT ANY OF THESE ""OUTRIGHT ABUSES OF POWER/ COERCION/ FRAUDULENT/ ILLEGAL/ CHILD TRAFFICKING SCAMS"" to The Supreme Court of Canada so it will end? WOW! There's no wonder all Canadians are scratching their heads as we speak..... - the PROFIT is way to BIG to be messed with .......

      http://t.co/uBrY070lPz

      How many cases have I personally INVESTIGATED and found that CHILDREN were QUICKLY and arbitrarily SEIZED / STOLEN from good, loving and caring parents/ wonderful home..... WITHOUT ANYONE HAVING A FAIR OPPORTUNITY TO CHALLENGE THAT IN ANY COURT WHATSOEVER....

      How many cases are ON RECORD where innocent, vulnerable and helpless CHILDREN were removed from their parents/ siblings/ and entire families - and for reasons which simply ELUDE COMMON SENSE?

      TO TOP IT ALL OFF..... THE COURT STAFF, JUDGES, BAILIFFS, ETC..... THEY ARE INVOLVED IN THIS HUMONGOUS SCAM AND THEY ALL DIRECTLY PROFIT FROM IT ALSO. Definitely the modern day WILD WILD WEST!

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