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.