What's Wrong with Nova Scotia's Children and Family Service Act:Comments & Recommendations

1/23 Subjects on Which the Act is Silent

2007-04-23T01:57:00.000-07:00

NEW LINK!

Totally Deceived: The Journey out of Denial

(Visit our parent blog site Revealing Truth for Child and Family Justice http://revealingtruthinnovascotia.blogspot.com/ for more concerns with Children's Aid/Family and Children's Services/Community Services in Nova Scotia and our sister site Former Reviews: They can do it Again! - We want a General Inquiry! http://revealingtruthinnovascotia3.blogspot.com/ Links are also to the right under LINKS)

Subjects on Which the Act is Silent

1. Anonymous Complaints
There is nothing in the Act that specifically permits or makes it mandatory for the agency to act on anonymous complaints.

Comments:

The question needs to be asked: Is the agency following up on all complaints, including the anonymous complaints? This does not seem to be the situation.

Many people are aware of cases where children are living in obvious horrendous conditions (drugs, prostitution, pimps, filth, neglect and/or abuse in their home environment ) and Children Services does nothing for them, even after concerned people have continually made complaints?

There is concern that Children’s Aid Societies/Family and Children Services Agencies/Department of Community Services wants to take in children from good families because they are more adoptable, and that they do not want to contend with the “hard” cases - the children who really do need protection and services.

2. Case Notes (also known as Case Recording Reports)

There is nothing in the Act that speaks of filing or not filing thes case notes as “evidence” in court.

Comments:

There is concern that these lengthy reports are full of large amounts of hearsay and gossip, and when they are filed, it then becomes the responsibility of individuals to file affidavits speaking against what is said in these notes- otherwise the court will assume you agree with the statements in these reports. However, we know of no lawyer who will take the time to respond to the filings of these lengthy case notes, even when their clients are pleading with them to do so. Many people find it impossible to get their lawyers to do the work that they should be doing - this includes both legal aid lawyers and well paid lawyers.

It is also understood from legal sources that this filing of case notes is a practice that is unique to the Greater Halifax Municipality. This inconsistency, in itself, is not appropriate

Parents should have access to these case notes, but their filing in court as “evidence” should not be permitted. If Children's Aid Societies/ Family and Children Services Agencies/Department of Community Services wants to bring forth specific concerns as evidence, they should bring forth that evidence independent from the case notes.

2/23 Children Apprehended because of the "risk of" -Section 22(1) (2)

2007-04-23T00:57:00.000-07:00

Children Apprehended because of the "risk of" -Section 22(1) (2)

Section 22(1)

In this Section, "substantial risk" means a real chance of danger that is apparent on the evidence.

Section 22 (2)

A child is in need of protective services where

(b) there is a substantial risk that the child will suffer physical harm inflicted or caused as described in clause (a) [inflicted bt a parent or guardian of the child or caused by the failure of a parent or guardian to supervise and protect the child]

(d) there is a substantial risk that the child will be sexually abused as described in clause (c)

(g) there is a substantial risk that the child will suffer emotional harm of the kind described in clause (f) [demonstrated by severe anxiety, depression, withdrawal, or self-destruction or aggressive behavior] and the parent or guardian does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm.

(ja) there is a substantial risk that the child will suffer physical harm inflicted or caused as described in clause (j) [by chronic and serious neglect by a parent or guardian of the child , and the parent or guardian does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm]

Comments and Reccommendations

Understand, these reasons for apprehending a child has nothing to do with a parent ever having physically or emotinally harmed or sexually abused ANY child EVER !

And when the children are apprehended, it IS NOT based on evidense as Section 22 (1). Instead these subsections are used as a catch-all trough to snare any child. Section 22 (1) is not applied in any sense - there is no evidense - it can be gossip - vendictive accusations - or all too often the parent's own lawyers who are a major part of the corrupt system, are pressing their clients into accepting these accusations.

Niave parents are easily conned into accepting these accusations because they understand that they are NOT saying they ever actually did harm, neglect or abuse their children in any way. But in Nova Scotia, this is all the government needs and uses to take children permanently away from their families !
These "risk of" subsection need to be struck from the act when there had never been and evidence of past abuse or neglect!

3/23 Apprehension of Children -Secs 33(1),34(3)(5)

2007-04-23T00:43:00.000-07:00

Apprehension of Children:

Section 33 (1) (Child may or may not have been taken into custody by agency first)

“An agency may, at any time before or after an application to determine whether a child is in need of protective services has been commenced, WITHOUT WARRANT OR COURT ORDER take a child into care where the agent has reasonable and probable grounds to believe that the child is in need of protective services and the child’s health and safety cannot be protected adequately otherwise than by taking the child into care.”

Section 34 (3)
“Where an agent has reasonable and probable grounds to believe a child is in need of protective services AND the health or safety of a child is in immediate jeopardy, the agent may, WITHOUT WARRANT OR COURT ORDER , enter, by force if necessary, any premises and search for a child for the purpose of taking the child into care as permitted by and in accordance with Section 33".

THEN
Section 34(5) states that “A hearing pursuant to this Section [34] shall be held in camera” (in private)

Comments and Recommendations:

Section 34(3) specifies “immediate jeopardy” - this is understandable. However, Section 33(1) does not make any such qualification for the apprehension of a child without a warrant or a court order. Except for the Emergency Measures Act, there is no other law that allows such power! Yet, even with the Emergency Measures Act, the Prime Minister would be expected to consult with the elected members of the Cabinet before imposing such extreme actions. This is too much power being put in the hands of individual workers and agencies that have a history of not being accountable.

If action is implemented through Section 34(3), the agency should be accountable and they should be expected to justify their belief of “immediate jeopardy”.

Section 33(1) should include a need for a warrant or court order. Warrants or court orders can be quickly issued by Justices, Judges and Courts if the need arises. Whenever possible, the Court must be involved and accountable for these apprehensions, and the courts must be vigilantly making the agencies accountable for these apprehensions as well.

Because there are grave concerns about the whole court system, such serious actions should not be allowed to take place in camera (in private). Is this applicable to Supreme Court (Family Division)?

4/23 Gathering Evidence -Sec26(1)(2)(4)

2007-04-23T00:35:00.000-07:00

Gathering Evidence:

Section 26(1)
“Upon the ex parte application of an agency” . . . “the court may grant an order directing that person or organization to produce the records or documents for inspection by the agency” . . .“where the court is satisfied that”
(a) there are reasonable and probable grounds to believe that a person or organization has possession, custody or control of records or documents containing information necessary for the agency to determine whether a child is in need of protection services AND
(b) that person or organization has refused or is unwilling to permit the production and inspection of those records or documents”

Section 26(2)
“where an agency has been refused access to a child or entry to premises where a child resides or is located, the agency may apply ex parte to the court and, where the court is satisfied that there are reasonable and probable grounds to believe that the child may be in need of protective services and that it is necessary to” . . . “determine whether the child is in need of protective services, the court may grant an order authorizing an agent named therein to do anything referred to in clauses (a) to (e) as the court considers necessary to so determine.”
(a) enter specified premises;
(b) conduct a physical examination of the child;
(c) interview the child;
(d) search specified premises and take possession of anything that there are reasonable and probable grounds to believe will afford evidence that a child is in need of protective services;
(e) remove the child and attend with the child for a medical examination of, or interview, the child on such reasonable terms and conditions as the court may order, including the presence of a parent or guardian or, in their absence, some other suitable adult person”

THEN
Section 26(4) states: “hearing in respect of an application made pursuant to this Section [26] shall be held in camera” (in private)

Comments and Recommendations:

It is interesting to note that, according to Section 26 (1)(2), to get evidence, Children’s Aid Societies/Family and Children Services Agencies/ Department of Community Services needs to get a court order BUT TO TAKE A CHILD, according to Section 33(1) and Section 34(3) , Children’s Aid Societies/Family and Children Services Agencies/ Department of Community Services does NOT need a warrant or a court order!

Children’s Aid Societies/Family and Children Services Agencies/ Department of Community Services gets around the need for a court order in 26(2) (b)(c) and (e) by first apprehending the child according to Section 33(1). Then, when this is done, the possibility of a parent, guardian, or other person being present, allowed under section 26(2)(e), is eradicated. In this circumstance the child is alone, scared and easily manipulated. There is nothing specified in the Act giving the child legal counsel at this time. In this country, we don’t allow adult’s to be hauled off for such interviews without legal counsel!

Because of grave concerns about the court system, such hearing should never be allowed “in camera”.

5/23 Time of Interim Hearing & Notice

2007-04-23T00:30:00.001-07:00

Time of Interim Hearing and Notice:

Section 39(1)
(0-2 days before Interim Hearing)

“As soon as practicable, but in any event no later than 5 working days after an application is made to determine whether a child is in need of protective services OR a child has been taken into care, whichever is earlier, the agency shall bring the matter before the court for an interim hearing, on 2 days notice to the parties, BUT the notice may be waived by the parties or by the court.”

Comments:

This section in fact allows the matter to be brought before the court immediately after the child has been taken into custody. “No later than 5 days” can be interpreted as 0-5 days. This does not give parents adequate time to acquire a lawyer, especially if they are going through Nova Scotia/Dalhosie Legal Aid to acquire a lawyer.

Legal sources have informed us that when the matter is first taken to court, this is when the stand must be taken with the families not agreeing to the apprehension on any level. We are told that if this is done, the case is more likely to be won . We are told that once the family’s lawyer agrees to the apprehension, the matter will be dragged out and the chances of having your child returned to you then become slim to nil.

The family lawyers here in Nova Scotia are not taking the stand at this point. They are bowing to Children’s Aid Societies/Family and Children Services Agencies/ Department of Community Services, telling the parents that the fight comes later. At this point , the parents are wrongly assuming that their lawyers are looking out for their best interest.

This section also allows the matter to go before the courts without notice to the parties (the parents!).

If this section was included to cover specific circumstances, these particular circumstances are not specified. As it stands this section is too vague and as such is open to abusive interpretation.

6/23 Children have the right to their own Lawyer to Party to the Proceeding

2007-04-23T00:23:00.000-07:00

Children are Suppose to Have the Right to Participate in Court as a Party to the Proceeding:

Parties to the Proceeding - Section 36 (1) (pursuant to Sections 32 to 49)
(c) the child, 16 years of age or more, unless the court otherwise orders pursuant to Section 37 (1)
(d) the child, 12 years of age or more, if so ordered by the court pursuant to Section 37 (2)
(e) the child, if so ordered by the court pursuant to subsection (3) of section 37.

Children 16 Years or Older - Section 37 (1)
“A child who is 16 years of age or more is a party to a proceeding unless the court otherwise orders and, if a party, is, upon request of the child, entitled to counsel for the purpose of a proceeding.”

Children 12 Years or Older - Section 37 (2)
“A child who is 12 years of age or more shall receive notice of a proceeding and, upon request by the child at any stage of the proceeding, the court may order that the child be made a party to the proceeding and be represented by counsel, where the court determines that such status and representation is desirable to protect the child’s interest.”

Other Sections of the Act that States that Children Should Be Able to Participate in the Process

Preamble to Act
“And Whereas children are entitled, to the extent they are capable of understanding, to be informed of their rights and freedoms, to be heard in the course of and to participate in the process that leads to decisions that affect them”

Section 3 (2)
“Where a person is directed pursuant to this Act, except in respect of a proposed adoption, to make an order or determination in the best interest of the child, the person shall consider those of the following circumstances that are relevant:
(j) the child’s views and wishes, if they can be reasonably ascertained”

Section 41 (4)
“Where a parent or guardian consents to a disposition order being made pursuant to Section 42 that would remove the child from the parent or guardian’s care and custody, the court shall:
(a) ask whether the agency has offered the parent or guardian services that would enable the child to remain with the parent or guardian
(b) ask whether the parent or guardian has been consulted and, where the child is 12 years of age or more, whether the child has consulted independent legal counsel in connection with the consent; and
(c) “satisfy itself that the parent or guardian understands and, where the child is 12 years of age or older, that the child understands the nature and consequences of the consent and consents to the order being sought and every consent is voluntary.”

Section 48 (3)
“A party to a proceeding may apply to terminate an order for permanent care and custody or to vary access under such an order, in accordance with this Section, including the child where the child is sixteen years of age or more at the time of application for termination or variation of access.

Comments and Recommendations:

How many children are actually made parties to the proceedings with their own independent lawyers? We have found none.

Children are NOT being informed of their right to become a party to the proceeding and to have their own legal counsel. There is nothing in the Act that specifies that children need to be informed of their rights to be a party and have legal counsel.

There is concern that if it is the responsibility of Children’s Aid Societies/Family and Children Services Agencies/ Department of Community Services to inform children of these rights, that children would be informed in such a manner that they would not request such status. However there is no evidence that Children’s Aid Societies/Family and Children Services Agencies/ Department of Community Services has been informing children of these rights.

If the children do realize they have the right to be made a party to the proceedings, there is no process described in the Act for the child to do so. Children are afraid to make their wishes known to their social workers - afraid of repercussions, or pressures to change their minds through foster parents, social workers, group home workers, or parents who may not support this action.. This is another argument for the involvement of the an independent body - the Ombudsman office is not independent - it is a provincial office.
The Children’s Section of the provincial Ombudsman’s Office has had money specifically allocated to them by the legislature since 2001 to protect the interest of the children in care ( see Nova Scotia Office of the Ombudsman Annual Accountability Report for the Fiscal Year 2001/02 (pg 11), Nova Scotia Office of the Ombudsman
Annual Accountability Report for the Fiscal Year 2002/03 (pg 12), and
Nova Scotia Ofice of the Ombudsnan Annual Accountability Report for the Fiscal Year
2003-04 (pg 10 ) . This money was repeatedly unspent “due to the delay in the implementation of the Children’s Ombudsman service to children in care of the government”. In 2005, the office finally claimed to be doing something for these children (we have not seen it) but they still have NO jurisdiction over children in foster care where the youngest and most vulnerable children are placed

No one is watching out for the children who are shipped out of province or out of country to such places as the deserts of Utah in southwestern United States. See the article Our Children are being Shipped Out to UTAH!

Section 37 (2) makes it very clear that a child can request a lawyer at any stage of the proceeding. The child needs to be formally informed of this right at the beginning, and there should be some sort of mechanism by which the child is reminded, in writing, on a regular basis, that they still have the right to have their own lawyer.
When parents have tried to get their children independent lawyers, they have been told a number of lies:
Parents are told the guardian ad litems are the children’s lawyers -THEY ARE NOT!
Parents are told the guardian ad litems’ lawyers are the children’s lawyers THEY ARE NOT !
Parents are told they cannot assist their children to find a lawyer - yet the social workers will manipulate the children and the parents on this issue.
When parents have found lawyers willing to take the case, Nova Scotia Legal Aid will not issue certificates for these lawyers.
We have witnessed Children’s Aid Societies/Family and Children Services Agencies/ Department of Community Services lawyers argue against the court allowing children independent lawyers using the general argument that THEY believe children are not mature enough to have their own lawyers. The justices /judges then just dismiss the children’s rights to independent lawyers. ismissed by the justice. BUT the Children and Family Services Act states children 12 years and older are indeed mature enough. BY dismissing the children‘s rights to an independent lawyer on the basis of a general argument, both the justice and the lawyer have raised themselves above the law , as if their personal opinion was more important than the law ! - For shame !
If children have court appointed guardian ad litems, we are aware that the wishes and concerns of the children are not being brought to the court through the guardian ad litems as they should. There are no mechanisms in place for the guardian ad litems to be accountable to the children. Gardian ad litems are dependent on repeat contracts through the system. As a result they work co- operatively with Children’s Aid Societies/Family and Children Services Agencies/ Department of Community Services at the expense of the rights and wishes of the children they are suppose to be representing.
Children in the care of the state have told us they are afraid to ask permission to be allowed to come to court and they are also afraid to come to court on their own to make a request to be made a party. They state they are afraid of possible repercussions because of missed school or because they are aware that their social workers do not want them to attend court.

To see what the Children’s Advocate Office of Saskatchewan has to say about children's rights to their own lawyers see Saskatchewan Children’s Right to Participate and be Heard in Child Welfare Proceedings: Submission for the Committee on the Rights of the Child General Day of "Discussion Group 1 The Child’s Right to be Heard in Judicial and Administrative Proceedings"

Not allowing children to have their own lawyers is contrary to Article 12(2) of the United Nations Convention on the Rights of the Child (UN CRC) which states that “the child shall in particular be provided the opportunity to be heard in any judicial or administrative proceeding affecting the child, either directly or through a representative or an appropriate” It is also contrary to Article 9(2) of the UN CRC wherein the Article states that: "…[in] any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known." The United Nations Convention on the Rights of the Child is a legally binding international document that Canada signed in 1990 and ratified in 1991 - The Senate Committee on Human Rights is designated to report back to the United Nations on a regular basis to report on Canada’s implementation of this obligation - We are not doing well - The latest report, Children: The Silenced Citizens: Effective Implementation of Canada's International Obligations with respect to the Rights of Children , released in April of 2007 does not speak well of children’s rights in Canada.

Canada ignores children's rights, senators say
Government slammed for not living up to UN charter
By STEPHEN THORNE The Canadian Press
2007-April-26, Canada

OTTAWA — Canada is failing to live up to its international obligations by denying children their right to influence government decisions, the Senate human rights committee says in a report critical of the lackadaisical manner in which international treaties are implemented.

Released Thursday, the report from the all-party committee calls on the federal government to appoint a children's commissioner to stand up for what it describes as a voiceless segment of Canadian society. It also says Ottawa should take steps to eliminate spanking and other forms of corporal punishment of children.

``Children's voices rarely inform government decisions, yet they are one of the groups most affected by government action or inaction,'' says the committee's 296-page report, entitled Children: The Silenced Citizens. ``Children are not merely underrepresented; they are almost not represented at all.''

The UN Convention on the Rights of the Child, which Canada ratified in 1992, puts children at the centre of family, community and culture, but the senators say there is a gap between ``the rhetoric and the reality'' of children's lives in Canada.

``Children must be in the room,'' Liberal Senator Jim Munson told a news conference. ``Children must be at the table.
``Too often we dictate ... to children and it's just not right.''

The committee, which made 24 recommendations on the rights and freedoms of children, says many Canadians continue to resist full implementation of the UN convention on the subject.

It calls Ottawa's commitment to children's rights inadequate due to ``jurisdictional complexities, the absence of effective institutions, an uncertain approach to human rights law, and lack of transparency and political involvement.''

The senators say compliance with children's rights undertakings needs better accountability, increased parliamentary and public input, and ``a more open approach that promotes transparency and enhanced political will.''

``The Convention on the Rights of the Child is not solidly embedded in Canadian law, in policy, or in the national psyche,'' says the report.

``Canadians are too often unaware of the rights enshrined in the convention, while governments and courts use it only as a strongly worded guiding principle with which they attempt to ensure that laws conform, rather than acting as if they are bound by it.

``Also, no body is in charge of ensuring that the convention is effectively implemented in Canada, and the political will is lacking. Implementation is key to making the convention work, and for Canada to claim that it fully respects the rights and freedoms of its children, it should improve its level of actual compliance.''

Ottawa doesn't have effective mechanisms in place to ensure compliance with its international human rights treaty obligations, the report says.

``Canada possesses no modern, transparent, and democratic international human rights treaty implementation process,'' it says. ``Further, no institution has ultimate responsibility for ensuring that international human rights conventions are effectively implemented.''

It calls for a formalized system to monitor implementation of international conventions and treaties, including — in the case of child rights — a group to co-ordinate and monitor federal legislation and policy along with an independent children's commissioner to monitor progress and meet with provincial child advocates.

See additional information connected with this issue under Section 37 (3) Guardian Ad Litem

7/23 Indian Children - Section 36 (3)

2007-04-23T00:20:00.000-07:00

Indian Children - Section 36 (3)
“Where the child who is subject of a proceeding is known to be Indian or may be Indian, the Mi’kmaq Family Services of Nova Scotia shall receive notice in the same manner as a party to the proceeding and may, with its consent, be substituted for the agency that commenced the proceeding”

Comments:

There is no clarification in this Act to the meaning of “Indian”. Does this include children who are “status” and “non-status” Indian? Off reserve and on reserve? What if the parent or grandparent or other persons made a party to the proceeding is status but the child is non-status?.

What if the child or other party to the proceeding is a First Nations person other than Mi’kmaq? ie: Cree? Inuit? Innu? Iroquois? Blackfoot? Chippewa? Anishinabe, etc? Will Mi’kmaq Family Services represent them?

What about this word “may”? Shouldn’t all Indian children have the right to be represented by Mi’kmaq Family Services of Nova Scotia if the child, parent, guardian or other person requests this. This word "may" allows the Mi’kmaq Family Services of Nova Scotia to only represent the children they want to and opens this Section up to possible nepotism, or discrimination, specifically intra-racism, and abuse.

8/23 Foster Parents - Section 36 (4)

2007-04-23T00:17:00.001-07:00

Foster Parents - Section 36 (4)

“On a hearing to review a disposition order pursuant to Section 46 or an application to terminate, or vary access under, an order for permanent care and custody pursuant to Section 48, a foster parent, who has cared for the child continuously during the six months immediately before the hearing or application’
(a) is entitled to the same notice of the proceeding as a party;
(b) may be present at the hearing;
(c ) may be represented by counsel; AND
(d) may make submissions to the court,
But shall take no further part in the hearing without the leave of the court.

Comments:

There is concern that while the case is still before the court with family members attempting to have the child returned to the family that foster parents are being allowed to inform Children’s Aid Societies/Family and Children Services Agencies/ Department of Community Services and the court that they are interested in adopting. When this is allowed, there is concern that Children’s Aid Societies/Family and Children Services Agencies/ Department of Community Services too quickly see this as a viable option before giving proper consideration, and services, to the family - Despite the fact that the Act states that the child should be kept within the family whenever possible.

9/23 Guardian Ad Litem - Section 37

2007-04-23T00:14:00.000-07:00

Guardian Ad Litem - Section 37 (3)

“Upon the application of a party or on its own motion, the court may, at any stage of a proceeding, order that a Guardian ad litem be appointed for a child who is the subject of the proceeding and , where the child is not a party to the proceeding, that the child be made a party to the proceeding, if the court determines that such a guardian is desirable to protect the child’s interests and, where the child is 12 years of age or more, that the child is not capable of instructing counsel.”

Comments and Recommendations :

First of all, there is nothing in the act that specifies what the guardian ad litem is suppose to do. In Section 3(1), where the definitions and meanings of titles and phrases are clarified, “guardian ad litem” is not included.

“the court may . . . order that a Guardian ad litem be appointed for a child . . . if the court determines that . . . the child is not capable of instructing counsel” - that means they are deemed not capable to have their own independent lawyer. Well, obviously, the courts here in Nova Scotia automatically assume all our children are incapable because Guardian ad litems are automatically assigned to all children without going through any process to determine they are not capable. Here in Nova Scotia, we have never found any children who have been able to have their own lawyers.

Did you know that in June of 2005, four senators from the Human Rights Committee- Children’s Section, Senator A. Raynell Andreychuk , Senator Mercer, Senator Pearson, and Senator Oliver came to Halifax to gather information from the Children’s Aid Societies/Family and Children Services Agencies/ Department of Community Services to take to the UN (United Nations ) concerning how well we were doing concerning the rights of children in the “care“ of the state. Proceedings of the Standing Senate Committee on Human Rights :Issue 19: Evidence June 16, 2005 - http://www.parl.gc.ca/38/1/parlbus/commbus/senate/Com-e/huma-e/19evb-e.htm?Language=E&Parl=38&Ses=1&comm_id=77 These senators were deliberately mislead into believing that we actually allowed children 12 and over to have their own legal counsel . In reply, the Senators suggested that they felt children 8 years and older were capable of having their own legal counsel! Perhaps the judges/justices and the senators need to talk.

Parents of children who have been apprehended are told that they are not allowed to discuss the case or the court proceedings with their children, even when the children are 12 years of age or older. However, when information IS shared between parents and children, it is learned that children are being told that the job of the guardian ad litem is to bring to the court the wishes and concerns of the children. However, parents, who have talked with their children about the requests they made to their guardian ad litems , attest that these requests are NOT being brought to the courts, as the children were led to believe. Is it any wonder that the parents and children are not suppose to talk about court proceedings- If they don‘t speak to each other, they are both left in the dark, ignorant of the lies, deceit, and the manipulation.

If the guardian ad litems are suppose to bring to the court the wishes and concerns of the child, there is no reliable independent mechanism for children to verify that their wishes and concerns are indeed being brought to the court.

When parents request a description of the guardian ad litem’s job, they are not being given a reply

There needs to be a clear description of the job of the guardian ad litem. There also needs to be a clear distancing of the guardian ad litems from Children’s Aid Societies/Family and Children Services Agencies/ Department of Community Services . Presently, they work as an extension of the government departments and agencies. This is clearly demonstrated during case conferences when it is obvious that all the parties, except the families, have already met and are all on the same page - united against the family.

It is interesting to note that guardian ad litems always have a lawyer present to protect their interests, but who is protecting the interest of the child in this relationship?.

10/23 If Parents Consents to Disposition Order Being Made That Will Remove Child - Section 41 (4)

2007-04-23T00:11:00.000-07:00

If Parents or Guardians Consents to Disposition Order Being Made That Will Remove Child - Section 41 (4)

“Where a parent or guardian consents to a disposition order being made pursuant to Section 42 that would remove the child from the parent or guardian’s care and custody, the court shall:
(a) “ask whether the agency has offered the parent or guardian services that would enable the child to remain with the parent or guardian”
(b) ask whether the parent or guardian or the child over 12 years old has consulted with independent legal counsel concerning the consent.
(c) “satisfy itself that the parent or guardian understands and, where the child is 12 years of age or older, that the child understands the nature and consequences of the consent and consents to the order being sought and every consent is voluntary.”

Comments:

So what is being said here? Look carefully. The court only has the obligation to ask these questions and satisfy itself that the parent and child understands IF the parents have consented. If the parent has NOT consented, there is no obligation under this act to ask these questions and seek these clarifications.

In any case, the Court is not asking these questions! Even if these questions were asked, there is nothing in the Act that specifies what the Court should do when the answers are in the negative: that the parents were not given services, that the child over 12 had not consulted with independent counsel concerning consent, that the child does not consent or that the child’s consent was not voluntary. But then, of course, this is not needed because, as already stated, these questions are not asked .

11/23 Duration of All Disposition Orders- Section 45 (1) (3)

2007-04-23T00:08:00.000-07:00

Duration of All Disposition Orders - Section 45 (1) (3):
Where the court has made an order for temporary care and custody, the total period of duration of all disposition orders, including any supervision orders shall not exceed:
45 (1) (a) - Under 6 years of age at time of application - 12 months
45 (1) (b) - 6 to under 12 years of age at time of application - 18 months
45 (3) - When child becomes 12 - Time limits no longer apply!!!

Comments:

The time limits for children under 12 years of age may look good BUT when you calculate the total time that may have passed before a disposition order has been made, the total time of a child in care and/or under the control of Children’s Aid Societies/Family and Children Services Agencies/ Department of Community Services can be a whole lot longer.

Why is there no time limit for children older than 12 years old?

12/23 Services for Families/“Least Intrusive”/ Apprehension Last Resort/ Importance of the Family

2007-04-23T00:01:00.000-07:00

Services for Families/“Least Intrusive”/ Apprehension Last Resort/ Importance of the Family

Section 13 (1) (2)(a-j),
(1) Where it appears to the Minister or the agency that services are necessary to promote the principle of using the least intrusive means of intervention and, in particular, to enable a child to remain with the parent or guardian or to be returned to the care of the child’s parent or guardian, the Minister and the agency shall take reasonable measures to provide services to families and children that promote the integrity of the family.

(2) Services to promote the integrity of the family include, but are not limited to, the services provided by the agency or provided by others with the assistance of the agency for the following purposes:

(a) improving the family’s financial situation;
(b) improving the family‘s housing situation;
(c) improving parenting skills;
(d) improving child-care and child rearing capabilities;
(e) improving homemaking skills;
(f) counseling and assessment;
(g) drug or alcohol treatment and rehabilitation;
(h) child care;
(i) mediation;
(j) self-help and empowerment of parents whose children have been, are or may be in need of protective services;
(k) such matters prescribed by the regulations.

( Note: See Justice Gass’ comments on section 13 in the Comments and Recommendation section below)

Section 42 (2)
“The court shall not make an order removing the child from the care of a parent or guardian unless the court is satisfied that less intrusive alternatives, including services to promote the integrity of the family pursuant to Section 13,
(a) have been attempted and have failed;
(b) have been refused by the parent or guardian; OR
(c) would be inadequate to protect the child”

Preamble to Act
“And Whereas social services are essential to prevent or alleviate the social and related economic problems of individuals and families.”

Section 9
“ The functions of an agency are to
(c) provide guidance, counseling, and other services to families for the prevention of
circumstances that might require intervention by an agency;
(e) develop and provide services to families to promote the integrity of the families, before and after intervention pursuant to this Act;”

Section 18
(1) “A parent or guardian who is unable to provide the services required by a child in the parent or guardian’s custody because the child has special needs, as prescribed by the regulation, may enter into a written agreement with an agency or the Minister for the care and custody of the child or provision of services to meet the child’s special needs.
(2)A special needs agreement made pursuant to this Section shall be made for a period not exceeding one year, but may be extended for further periods each not exceeding one year, with the approval of the Minister.”

Section 20
“Where the Minister or an agency enters into an agreement pursuant to Section 17, 18, or 19, the Minister or the agency shall, where practicable, in order to ensure the child’s best interests are served, take into account
(a) the maintenance of regular contact between the child and the parent or guardian;
(b) the desirability of keeping brothers and sisters together in the same family unit;
(c) the child’s need to maintain contact with the child’s relatives and friends;

Section 42 (4)
“Where a parent or guardian consents to a disposition order being made pursuant to Section 42 that would remove the child from the parent or guardian’s care and custody, the court shall:
- ask whether the agency has offered the parent or guardian services that would enable the child to remain with the parent or guardian”

Section 42 (2)
“The court shall NOT make an order removing the child from the care of a parent or guardian unless the court is satisfied that less intrusive alternatives, including services to promote the integrity of the family pursuant to Section 13,
(a) have been attempted and have failed;
(b) have been refused by the parent or guardian; OR
(c) would be inadequate to protect the child”

Section 44 (3)
“Where the agency places a child who is the subject of an order for temporary care and custody, where practicable, in order to ensure the best interest of the child served, take into account
(a) the desirability of keeping brothers and sisters in the same family unit;
(b) the need to remain contact with the child’s relatives and friends;”

Keeping the Family Unit Together is Important:
Preamble to Act

“The family exists as the basic unit of society, and its well-being is inseparable from the common well-being . . . AND WHEREAS parents or guardians have responsibility for the care and supervision of their children and children should only be removed from that supervision, either partly or entirely, when all other measures are inappropriate.”

Section 2(1)

“The purpose of the Act is to protect children from harm, promote the integrity of the family
and assure the best interest of the children”

Section 3 (2)(a-l)
“Where a person is directed pursuant to this Act, except in respect of a proposed adoption, to make an order or determination in the best interest of a child, the person shall consider those of the following circumstances that are relevant:
(a) the importance for the child’s development of a positive relationship with a parent or guardian and secure place as a member of a family;
(b) the child’s relationship with relatives;
(c) the importance of continuity in the child’s care and the possible effect on the child of the disruption of that continuity;
(d) the bonding that exists between the child and the child‘s parent or guardian;
(e) the child‘s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs;
(f) the child‘s physical, mental and emotional level of development;
(g) the child’s cultural, racial and linguistic heritage;
(h) the religious faith, if any, in which the child is being raised;
(i) the merits of a plan for the child‘s care proposed by an agency, including a proposal that the child be places for adoption, compared with the merits of the child remaining with or returning to a parent or guardian;
(j) the child‘s views and wishes, if they can be reasonably ascertained;
(k) the effect on the child of delay in the disposition of the case;
(l) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent or guardian;
(m) the degree of risk, if any, that justifies the finding that the child is in need of protective services;
(n) any other relevant circumstances.”

Section 17(2)(b)
“An agency shall not enter into a temporary-care agreement unless the agency
(b) is satisfied that no less restrictive course of action, such as care in the child’s own home, is appropriate for the child in the circumstances.”

Section 28(1)
“Where it appears to an agent that a child has been abandoned, a child’s only parent or guardian has died, or no parent or guardian of the child is available to exercise custodial rights over the child or has made adequate provisions for the child’s care, the agency may assume the temporary care and custody of the child, for a period not to exceed seventy-two hours, during which time the agency shall make all reasonable efforts to locate or contact a parent or guardian or, in the absence of a parent or guardian, a relative of the child who is willing and able to provide for the child’s care.”

Section 39(8)(a)(b)
“Where the agency places a child who is the subject of an order pursuant to clause (e) of subsection (4), the agency shall, where practicable, in order to ensure the best interest of the child are served, take into account
(a) the desirability of keeping brothers and sisters in the same family unit;
(b) the need to maintain contact with the child’s relatives and friends;”

Section 42 (2)
“Where the court determines that it is necessary to remove the child from the care of a parent or guardian, THE COURT SHALL, before making an order for temporary or permanent care and custody pursuant to clause (d), (e) or (f) of subsection (1), CONSIDER WHETHER IT IS POSSIBLE TO PLACE THE CHILD WITH A RELATIVE, NEIGHBOUR OR OTHER MEMBER OF THE CHILD’S COMMUNITY OR EXTENDED FAMILY pursuant to clause (c) of subsection (1), with the consent of the relative or other person.”

Comments and Recommendations :

Unfortunately, the agency only plays lip service to the importance of keeping the family together and offering services with the intention of keeping the family together.

Services are either not being offered, or when services are utilized, they are not used with the intention of keeping the family unit together. Instead, they are used as thinly veiled investigative tools to gather or concoct “evidence” against the family. Some people are well aware of this, and often times this is the reason families are refusing the “services“, if offered. Then this refusal of services is used against the families. It becomes a damned if you do and damned if you don’t situation. If families had confidence in the positive intent of these services, they would gladly participate, but this is not the case.

Justice Gass’ comments and criticisms of Section 13 of the CFS Act concerning the services that are suppose to be offer to families before contemplating taking children into care are reproduced in the 2 “annual” reports,

Report: Ministers Advisory Committee on Children and Family Services Act, December 1993; and
Report: Ministers Advisory Committee on Children and Family Services Act, March 1996:

“Just to throw my own two cents worth into this section 13 which seems to have fallen far short of what it was designed to do in reality. Certainly my understanding of the basis for this new legislation was essentially that it was designed to change the focus of the child protection proceedings to eliminate the necessity, where possible of the court intervention and the need to take children into care, by promoting the integrity of the family and providing services before things had reached the critical point where the agency had to intervene and the matter had to come before the court.

And it seems to me what is happening in reality is just what has been suggested; that expectations as to what the Act was to accomplish have been raised by the very wording of section 13 and in reality there is nothing there unless the situation has already reached the critical point where there has to be intervention. And yet the whole idea of it is the least intrusive measures and to prevent intervention by providing services before the situation reaches the critical point.

The other thing is that the . . .uh . . Certainly in looking at the letter . . . what . . . when the section 13 services are intended to be provided by the Minister . . . Is not at all consistent with when they were envisaged to be provided in the legislation. There are such basic things as financial situations, housing situations, drug and alcohol rehabilitation etc., all of which in and of themselves don’t necessarily mean that a crisis is there yet but you plug in before the crisis erupts. To read the letter [?] is to suggest that section 13 really shouldn’t be in the Act. If it is going to be there then there should be something to back it up and, if not, it shouldn’t be there.

I always thought it was a preventative measure and as Mr. [Rollie] Thompson says in his commentary [The Annotated Children and Family Services Act], this provision is the cornerstone of the Act’s emphasis upon voluntary access to services for family. And it goes on to say the Minister must take reasonable measures to provide services when it appears to either that such services are necessary to further those principles and those principles are least intrusive interventions and the promotion of the integrity of the family.

Well it seems to me that it kicks the cornerstone right out from underneath the Act. Having said that, I hope that something can be done to either change the Act to fit reality, or preferably have the services put in place to bring about the whole purpose of the Act. Well good luck to you folks.”

Section 42 (2) states that “the Court shall consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family”. Section 28(1) states that the agency shall make all reasonable efforts to locate or contact a parent or guardian or, in the absence of a parent or guardian, a relative of the child who is willing and able to provide for the child’s care.” Legal counsel has informed us that the term “shall” is a legal term that allows no options. When the Court and the agency neglects to proactively inquire about these options outside of foster care, the court is not following the law.

When family does come forward to take care and custody of the child they are automatically sent into assessment. There are grave concerns about the professionalism of these assessments including deliberate misrepresentation of statements given during the interview stage. Families are consistently being denied the option of having the these interviews taped so that it becomes their word against the “professional’s”. Tests have been wrongly administer and applied to guarantee an inaccurate “psychological label”.

Even when assessments have been reviewed by well respected PHD psychologists and are found profoundly lacking, complaints to the NS Board of Examiner’s in Psychology have not been successful. In fact, these complaints aren’t even getting past the initial investigation stage. The NS Board of Examiners in Psychology remains extremely secretive during this process, they will not tell you who, if any people, they have contacted during the investigation, or what is being said, so that you don’t get a chance to rebut. They will not even identifying the investigation team until the investigation is finished. Then, when the decision comes down, family is told that they cannot ask any questions about the investigation and that they have no right to appeal!

Other professional complaint system, like the Barristers’ Society, are more transparent during their complaint process. During the investigation, you have a right to know who is saying what, and you are given a chance to rebut back and forth as the investigation progresses. Ontario has the right to appeal in their parallel system that deals with complaints against psychologists.

The question needs to be asked: Why is the NS Board of Examiners in Psychology
being so secretive? These assessments are impacting our children and our families in an extreme way. There is concern that some psychology establishments are getting most or the majority of their business from Children's Aid Societies/Family and Children Services Agencies /Department of Community Services (CAS/FCS/DCS) -this has been admitted in court by one of the biggest contract providers.

Contracts with CAS/FCS/DCS can be very lucrative. A local PHD psychologist while admitting there is problems with the interaction and relationship between psychologists and CAS/FCS/DCS across the province stated that there is a “particular problem” in the Halifax Metro Area. Could this be because of the high concentration of mental health care providers chasing an income here in the city.

The psychologists who are doing these assessments need to be made accountable. Our children deserve this!

13/23 Terms of Supervision Order - Section 43 (1)

2007-04-22T23:58:00.001-07:00

Terms of Supervision Order - Section 43 (1)
Court may impose terms including:
(a) Agency supervision within the residence of child
(b) Place of residence of child and person with whom the child will reside
(c) Frequency of visits at residence by agency
(d) Restricting parent guardian or other person from residing with or having contact with
child
(e) Access to child by parent, guardian or other person
(f) Assessment , treatment or services “to be obtained for the child”
(g) Assessment, treatment or services “to be obtained by parent, guardian or other person residing with the child AND
(h) “any other terms the court considers necessary.”

Comments:

There is some confusion about the use of the word “for” in Section 43 (1) (f) and the use of “by” in Section 43 (1) (g).

14/23 Parental Access under Permanent Care and Custody by Agency

2007-04-22T23:52:00.000-07:00

Parental Access under Permanent Care and Custody by Agency -
Section 47 (2)

“Where an order for permanent care and custody is made, the court may make an order for access by a parent or guardian or other person, but the court shall not make such an order unless the court is satisfied that:
(a) a permanent placement in a family setting has not been planned or is not possible and the person’s access will not impair the child’s future opportunities for such placement;
(b) the child is at least 12 years of age and wishes to maintain contact with that person
(c) the child has been or will be placed with a person who does not wish to adopt the child; OR
(d) some other special circumstance justifies making an order for access”

Comments and Recommendations:

Few parents are aware of this right AND even fewer children 12 years of age or older would be aware of their right under Section 47 (2) to express their desire to maintain contact with a parent or guardian or other person.

The Act does not specify a reliable mechanism for children to be informed of their rights and reliable ways these “wishes to maintain contact” can be expressed freely to the courts. Up until 2005, the Children’s Section of the Ombusman’s office chose not implement their jurisdiction over any children in care (And we are still not convinced they are doing anything concrete). They still do not have jurisdiction over children in foster care, where most of the younger more vulnerable children are placed. And who is watching over the children of Nova Scotia who are shipped out of province and out of country to places like Utah, and other destinations in United States ? And how would these children, so far away, maintain contact with family ?

15/23 Why an Application for Access under Permanent Care to an Agency May Not be Made Section 47 (3) (a)

2007-04-22T23:46:00.000-07:00

Why an Application for Access under Permanent Care to an Agency May Not be Made Section 47 (3) (a):

“Where the child has been placed and is residing in the home of a person who has given notice of proposed adoption by filing the notice with the Minister, no application for an order granting access may be made during the continuance of the adoption placement until
(a) an application for adoption is made and the application is dismissed, discontinued or unduly delayed OR
(b) there is an undue delay in the making of an application for adoption.”

Comments:

This Section is very specific - that it is only applicable when “the child has been placed and is residing in the home of a person who has given notice of proposed adoption” According to this section, if someone has proposed to adopt BUT the child is not residing with this person, there should be no reason why an application for access cannot be made.

16/23 Agency’s Annual Report Section 48 (11)

2007-04-22T23:41:00.000-07:00

Agency’s Annual Report Section 48 (11)

Where:
(a) a child has been in the permanent care and custody of the agency for the past year
(b) no application to terminate or to vary access has been heard for the past year AND
(c) no notice of proposed adoption has been filed by the person with whom the child is residing [See Section 48 (4)]
The agency shall at least once a year submit a written report to the Minister concerning
- the circumstances of the child
- the agency’s plan for the child’s care and placement
And the Minister shall review the report and make further inquiries as are considered necessary.

Comments:

Does a parent have the right to attain a copy of the annual report?

Does a parent have a right to voice concern found in the plan? Remember, some parents, Under Section 47 (2), may, still have access to their children.

17/23 Appeal Section 49 (1)

2007-04-22T23:35:00.000-07:00

Appeal Section 49 (1)

Any order of the court (Section 32-48) may be appealed to the Appeal Division of the Supreme Court by filing notice to appeal within 30 days of the order to the registrar of the Appeal Division.

Comments:

This is not enough time for a parent or guardian to make an appeal, especially if they are going through legal aid. Families are told by both Nova Scotia Legal Aid and Dalhousie Legal Aid that each of the many steps you need to go through will be 2-3 days each, when, in fact, the steps each take a week, taking the person beyond the 4 week period. One of the most time consuming, AND EXPENSIVE aspect of an appeal is ordering tapes of the previous court proceedings and getting approved transcripts made- As well as filing a appeal book with copies for everyone. The court can “conveniently” keep you waiting weeks for the court tapes- not leaving you much time to get transcripts made and little if any time to review the information in the tapes/transcripts.

For the increasing numbers of families who are choosing to self represent (for many good reasons) - this is definitely not enough time.

18/23 Stay: Section 49 (2)

2007-04-22T22:53:00.000-07:00

Stay:
Section 49 (2)

“A party may apply to the court at the time of the order for an order staying the execution of the order, or any part of the order, for a period not to exceed 10 days.”

Comments:

What good is a 10 day stay and what is the chances of a Justice actually granting a stay?

Also, according to the reading of this section, this application has to be made immediately “at the time of the order”. How many families would be prepared to do so - And this also assumes that you have a lawyer who is on the ball. To date, we have not found any Nova Scotian family lawyer we would recommend to anyone.

Section 49 (3)
“ Where a notice of appeal is filed pursuant to this section, a party may apply to the Appeal Division of the Supreme Court for an order staying the execution of the order, or any part of the order, appealed."

How quickly will this happen? By the time the 10 day given under Section 49 (2) has expired? Not likely.

19/23 Further Evidence Section 49 (5)

2007-04-22T22:41:00.000-07:00

Further Evidence Section 49 (5)

“the Appeal Division of the Supreme Court may in its discretion receive further evidence relating to events after the appeal order.”

Comments:

What does this mean? How would this work? To whose advantage? In actual practice, is the court REALLY going to allow families to bring forth new evidence.

From our observations in court, we have not seen the fair use of discretion by the courts of Nova Scotia. Such extensions of discretions tend to be awarded to the advantage of Children Aid Societies/ Family and Children Services Agencies/Department of Community Services.

20/23 Runaway Children Sec3(1)(e), 29 (a-d)

2006-06-05T02:07:00.000-07:00

Runaway Children

Section 3(1)(e)
States a “ ‘child’ means a person under sixteen years of age unless the context otherwise requires”

Section 29(a-d)
concerning run-away children, states that parent, guardian or agency can get an ex parte application for a court order to “authorize a peace officer to locate and detain the child” and “return the child to the parent or guardian or the agency” if they have “reasonable and probable grounds to believe that the child’s health or safety may be at risk”

Comments:

The question is: If the state can get the police to look for the runaway children in the system then why can’t parents get the police to find and return their runaway children?

Time of Interim Hearing and Notice:

Section 39(1)
(0-2 days before Interim Hearing)

This section in fact allows the matter to be brought before the court immediately after the child has been taken into custody. “No later than 5 days” can be interpreted as 0-5 days. This does not give parents adequate time to acquire a lawyer, especially if they are going through Nova Scotia/Dalhosie Legal Aid to acquire a lawyer.

Legal sources have informed us that when the matter is first taken to court, this is when the stand must be taken with the families not agreeing to the apprehension on any level. We are told that if this is done, the case is more likely to be won . We are told that once the family’s lawyer agrees to the apprehension, the matter will be dragged out and the chances of having your child returned to you then become slim to nil.

The family lawyers here in Nova Scotia are not taking the stand at this point. They are bowing to Children’s Aid Societies/Family and Children Services Agencies/ Department of Community Services, telling the parents that the fight comes later. At this point , the parents are wrongly assuming that their lawyers are looking out for their best interest.

This section also allows the matter to go before the courts without notice to the parties (the parents!).

If this section was included to cover specific circumstances, these particular circumstances are not specified. As it stands this section is too vague and as such is open to abusive interpretation.

21/23 Money from Parents-Sec 52-53

2006-06-04T22:25:00.000-07:00

Getting Money from Parents, Guardians or Other Liable Persons -(Section 52-53)

Section 52

(1) “the court shall inquire into the ability to support a child“
(2) “”the court may order the parent, guardian or other person to pay to
(a) the Minister OR
(b) the court for payment to the agency
“ a sum not exceeding the maintenance costs for maintaining the child pursuant to this Act, during the time which the child is cared for by an agency prior to and after the making of the order and a sum equal to the expenses incurred for taking the child into care, or in lieu thereof, a lump sum determined by the Governor in Council.’

Section 53
“Where a maintenance order is made, pursuant to section 52, the order may be appealed or enforced as an order pursuant to the Family Maintenance Act.

Comments and Recommendations:

It is scandalous that the Children Aid Societies/ Family and Children Services Services/Department of Community Services should be able to rip families asunder and then expect the victims to pay for it! I understand that the justices are reluctant to enforce this and so they should be! This Section should be removed from the Act entirely.

22/23 Minister's Child Abuse Register Section 63-66

2006-06-04T22:04:00.000-07:00

The Minister’s Child Abuse Register Section 63-66

Section 63 (3)
“The Minister or an agency may apply to the court, upon notice to the person whose name is intended to be entered in the Child Abuse Register, for a finding that, on the balance of PROBABILITY, the person has abused a child”

Comments and Recommendations:

This is beyond scandalous! That a person’s reputation could be ruined “on the balance of probability”! This is a power that the Children’s Aid Societies/Family and Children Services/Community Services should not have! Many people have experienced workers within the agencies deliberately lying about specific situations. There is serious concern that the application of this registry could be abused.
The Child Abuse Registry should be maintained by the police, and it should be based on proof and convictions!

Comments and Recommendations by the Minister‘s Advisory Committee on Children and Family Services Act 1996 :
This committee is suppose to be formed on an annual basis. 1996 was the last year this committee reported back on this act as mandated in Section 88 (1)

“As a result of enhancements to the Canadian Police Information Centre (CIPC) the Advisory Committee was concerned as to whether there would be a duplication between the role of the Child Abuse Register and the CIPC. Several organizations recommended that the Child Abuse Register be eliminated. . . . . (Nova Scotia Council for Family) ‘We recommend that the Child and Family Register be eliminated and that child welfare agencies be given direct access to CPIC. The register is more problematic than functional.’ . . . (Judge James Wilson, family Court) . . . ‘I am not convinced that the present register is working as it should. . . . I think it is important to have a process to ensure that inappropriate registrations are screened and all parties are notified and given the opportunity to object when their name is entered on the Registry’ . . . The committee believes it might be appropriate for the next committee to decide whether or not it should be continued based on the CPIC enhancement. The Minister should also initiate discussions with federal officials with regard to placing findings under child welfare legislation on CPIC.” (pg 13-14, 16)

23/23 Annual Review Of CFSA Section 88 (1)

2006-06-04T21:28:00.000-07:00

Annual Review Of Children and Family Services Act (CFSA):
Section 88 (1) (2)

“The Minister shall establish an advisory committee whose function is to review annually the provisions of this Act and the services relating thereto and to report annually to the Minister concerning the operation of the Act and whether the principles and purpose of the Act are being achieved.”

“The advisory committee shall be appointed by the Minister, after consultation with the relevant groups and individuals, and shall include
(a) 2 persons whose children have been, are OR may be in need of protective services;
(b) a representative from an agency;
(c) a representative of the Minister;
(d) a legal aid lawyer
(e) 2 persons drawn from the cultural, racial or linguistic minority communities; AND
(f) such other persons, not exceeding 3, as the Minister may determine.

Comments:

To date, there are only 2 “annual” reports of the CFSA stemming from such advisory committees:

- Report: Ministers Advisory Committee on Children and Family Services Act, December 1993;
- Report: Ministers Advisory Committee on Children and Family Services Act, March 1996,

This means only 2 “annual” reports have been done since the latest Children and Family Services Act was enacted in 1990!!!

The government claimed there was an additional committee in 1999. Indeed they did publish an Interim Report: Ministers Advisory Committee on Children and Family Services Act and Adoption Act, 1999. However, the title of this document is a misnomer because there was absolutely no mention of the Children and Family Services Act in this report!

Section 88 (1) specifically specifies what the advisory committee is suppose to do “review annually the provisions of this Act and the services relating thereto and to report annually to the Minister concerning the operation of the Act and whether the principles and purpose of the Act are being achieved.” If a committee does not do this specific work, then, in no way can the government claim that this is the committee specified in Section 88 of this Act.

Recently, at the end of 2005, the government added a second fictional committee to their list, now claiming another committee in 2001. The only “evidence” of this committee is a 2 page document entitled Increasing Open Adoption in Nova Scotia: Report of the Advisory Committee to the Minister regarding Bill 17, dated Sept 10,2001. In addition, there is a letter from Paula Altenburg clarifying that the work of this committee was to report back on adoption disclosure legislation only . Lastly there is a 1 page letter from Peter Christie thanking “the Advisory Committee for the Report regarding Bill 17 and the Adoption Information Act “. Again, it must be reiterated, this does not meet the criteria as stated in Section 88(1) of this Act concerning the work this specific committee is suppose to do.

It is of grave concern that this government is encouraged in their continual and persistent deceit by a media that is willing to continually publish the claims of the government unquestioned and un-researched. And it is extremely frustrating when the media refuses to take note of any research university educated advocates have done.

It has been made very clear to us, by both lawyers and justices, that the word “shall” is a very important legal term which means that the Minister is legally obliged to form this advisory committee. Since May 11, 2004, I, Linda Youngson, wrote David Morse, twice, making him aware of the moral and legal necessity to form this committee.

Twice the Minister replied in letter:

In the first letter dated June 28, 2004, the Minister, David Morse, states, “ I am pleased to inform you that the Department of Community Services is currently making plans to review the membership of the Minister’s Advisory Committee. Given the expressed interest, I would be pleased to inform you at the appropriate point in time when membership selection is being considered.”

In the second letter dated September 21, 2004, the Minister states, “ Once again I am pleased to acknowledge your continued expressed interest in the membership of the Minister’s Advisory Committee. Although I deeply regret the delay, membership selection is still not currently being considered for this committee.’

When this “delay” continued, and after being denied an appointment with the Minister, Marilyn Dey and I filed a court action in June 2005, against the Minister to force him to put together a Section 88 committee as mandated by law. The government fought us on this action, arguing that “the Crown only owed its duty to the Crown” and that it owed no duty (to obey the law) to individuals citizens like Marilyn Dey and I !

In the end, we did force the Minister to appoint this committee (see 2 newspaper articles at the bottom of this article concerning this court action)

Both Marilyn Dey and I applied to be on this committee - And, not unsurprisingly, we were both overlooked. We have since reapplied to be on the 2007 committee.

To date, we have no evidence that this committee is, indeed, doing the specific work they are mandated to do in section 88(1). And, at the bottom of this posting, I will attach an article written by Steven Kimber, of the Daily News clarifying the sham the appointments to this committee turned out to be.

In addition, I will write a future posting for this blog spot explaining all the extraordinary events that took place concerning this court action.

Recommendations:

Because a person who has not yet had their child in care cannot speak to the issues and concerns the way a person who has had their children in care can, it is recommended that at least 2 persons who have had their children in care, or presently have their children in care should be on the committee.

Retain at least 1 spot for a person whose children may be in need of care.

One spot should be for a legal aid service that is at arms length from the government . This would mean that Nova Scotia Legal Aid and Dalhousie Legal Aid would NOT fit the criteria.

At least 4 spots for racial, or linguistic communities should be on the board. At least one of these spots needs to be for First Nations peoples other than a Mi’kmaq person. There are many people in Nova Scotia from diverse Aboriginal Nations and cultures. Because certain individuals from the Mi’kmaq community have continually and aggressively placed themselves on this and other committees and boards throughout Nova Scotia, representation from other Aboriginal Nations has traditionally been nil or extremely sparse, and, as a result, First Nations People outside the Mi’kmaq Nations have often felt excluded.

Comments and Recommendations by the Minister‘s Advisory Committee on Children and Family Services Act - 1996 :

This committee is suppose to be formed on an annual basis. 1996 was the last year this committee reported back on this act as mandated in Section 88 (1)

“The Advisory Committee recommends that the Act be amended to require the Advisory Committee to report bi-annually, instead of on an annual basis. The reason for this is that it is difficult for appointees to the Committee to become familiar with their mandate, request input, review responses, and prepare a report to the Minister within one year. Therefore, it is further recommended that members to the Advisory Committee be appointed for a two-year term.”
(pg 32)

Court orders creation of child protection committee
Chronicle Herald, HALIFAX, NOVA SCOTIA Thursday December 15, 2005

The Community Services Department has until the end of December to fill the last vacancy on a committee that advises the minister on child protection.

New Democrat MLA Graham Steele issued a news release Wednesday that said the Nova Scotia Supreme Court in a ruling Tuesday ordered Community Services Minister David Morse to appoint an independent advisory committee to review how the Children and Family Services Act is working in Nova Scotia.

The committee is supposed to be appointed every year, but that hasn’t happened in the past few years.

The case was brought forward by Marilyn Dey and Linda Youngson and Mr. Steele, a lawyer, was representing them pro bono.

"We are pleased to get the court order, because an independent review of the child-protection system is long overdue," Ms. Dey said in a news release.

"But it is very unfortunate that we had to go to court to get the minister to obey the law.

"The decision was given by Justice Hilroy Nathanson, who also ordered Mr. Morse to pay court costs to Ms. Dey and Ms. Youngson.

George Savoury, the department’s senior director for family and children’s services, said the department will do its best to get the committee "up and running" by the end of the year and that a date for its first meeting is set for early in February.

He said there is a suitable candidate to fill the final spot on the committee.

The legislature’s standing committee on human resources approves or rejects appointments to government agencies, boards and commissions. It doesn’t have another meeting scheduled until Jan. 31.

( asmith@herald.ca)

Minister ordered to bring back committee

By Brian FlinnThe Daily News, Thursday December 15, 2005

The Nova Scotia Supreme Court has ordered Community Services Minister David Morse to reactivate a long-dormant committee to review how the Children and Family Services Act is working.

Two metro women who fought to revive the committee said it's a victory for parents whose children are taken by the department. Linda Youngson and Marilyn Dey first asked the government to revive the committee last year.

"There has been no accountability," Dey said. "There is no place for parents to go.

"Children and Family Services took Dey's daughter away from her. She got her back, but has been working since then to change the system.

By law, the committee is supposed to be formed each year. It has not met since 2001.

Justice Hilroy Nathanson gave Morse until the end of December to find members.

bflinn@hfxnews.ca

Committee? Committee? Check. Justice? Maybe no
By Stephen KimberThe Daily News Sunday, December 18, 2005

Graham Steele was frustrated. One of his constituents, a woman named Marilyn Dey, had come to him almost two years before, to ask for his help with a child custody case. But she'd buried the NDP MLA under the weight of so many documents and so much information - not just about her own case, but the cases of others she knew who were experiencing similar problems with the province's child welfare services - Steele was overwhelmed.

To complicate matters, she'd not only drawn connections among all those cases, but also tied them together with the intricate strands of any number of conspiracy theories to explain the why of the what.

Steele had tried to tell her he wasn't an investigator or a policeman, that neither he nor his colleagues had the resources or the authority to do the kind of investigations she wanted.

Which was why he was relieved earlier this year when Dey mentioned in passing that she'd discovered that an independent committee the government was supposed to appoint each year - to review how the child welfare act was working - had not been operational for at least three years.

"Now that," he said, "I can help you with."

Supreme Court

Trading in his MLA's podium for his lawyer's briefs, Steele filed an application with the courts to force the minister of community services, David Morse, to appoint the review committee.

Last week, Nova Scotia Supreme Court Justice Hilroy Nathanson wasted little time in dismissing the government's dissembling justifications for inaction and ordered the minister to do it by the end of this month.

The fact is that the government - perhaps recognizing the ridiculousness of its own arguments - had already finally, belatedly, reluctantly begun naming people to serve on the 10-person committee."

When we filed the court papers June 27," Steel says, "they had appointed zero members." By the time court convened at 11 a.m. on Dec. 13, nine of the 10 members of the review committee were in place, the last two named just two hours before the hearing.

While Steele says he personally knows some of those appointed to the committee "and they'll be fine," he noted that the appointment process itself "left a great deal to be desired."

By law, the committee's membership is supposed to include one representative each of the minister and a child welfare agency, a legal aid lawyer, two members from the province's "cultural, racial or linguistic minority communities" and - most importantly - "two persons whose children have been, are or may be in need of protective services."

The government pointedly dismissed applications from Dey and another woman, Linda Youngson, the second complainant in Steele's application, who wanted to serve as parent representatives.

And it ignored other individuals who'd volunteered to serve after reading about Steele's court application.

At the same time, the government courted others to come forward, even doing the paperwork for a least one nominee.

Society employees

The two names they initially put forward as minority representatives, in fact, turned out to be employees of the Children's Aid Society, the agency whose actions are most likely to be criticized. Talk about stacking the deck!

But the key appointees remain those two parent representatives. "The aim of the people who set this up," says Steele, was that those on the "receiving end of the system" be strongly represented on the committee.

So who has Morse named?

The man chosen to fill one of those two positions is Timothy Van Zoost, who ran provincially for the Conservatives a few elections ago. His qualification is that one of his children was in care before he adopted her. While that technically fits the criteria, it sure as hell doesn't give Van Zoost experience with having his child taken away from him, or with trying to get her back.

There is still one vacancy for a parent representative on the committee, one last chance for David Morse to get it right. Based on his track record, don't hold your breath.

Even after it is finally in place, however, it's worth asking what the committee can actually do. Can it look into the dozens of complaints from people like Dey about how

Can it go back to the spring of 2004 and finally conduct a real review of the controversial CAS seizure of Larry Finck's and Carline VandenElsen's infant daughter?

Steele says it can."It's supposed to be an independent committee," he explains. "The question is whether it will be willing to ask the tough questions.

" He pauses. "The fact is there is no other forum for these discussions. The committee is the only hope for those people who want answers to their questions."All of us should be watching to see what happens.

Stephen.Kimber@ukings.ns.ca