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Lawyers Sell Out Parents

December 11, 2006 permalink

Anne Marsden reports from her own advocacy experience that lawyers sell out their clients in child protection cases.



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The Canadian Family Watchdog
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(Quote from the Report of the Chief Justice of Ontario upon the opening of the courts of Ontario for 2006)

By Anne Marsden

If this is a true statement as one would expect it to be coming from the Chief Justice responsible for the operation of our courts then Legal Aid surely has a means of dealing with those lawyers who turn the dream into a nightmare. Our audits show that a legal aid lawyer Birkin Culp of Lefebvre and Lefebvre consented to his client's daughter remaining in care without such instruction from his client. A privately paid lawyer, Mark Kakkainen, a publicly paid Ontario Childrens Lawyer -Sandra Hams -and a publicly paid Brantford CAS lawyer were also part of the consent process that has no lawful place in family court in Ontario.

The child was the subject of a TCA (temporary care agreement) signed December 5, 2002 by mom. The CAS failed to obtain the consent of dad who had equal custodial rights and responsibilities. However, the court and the lawyers involved refused to act on the evidence brought before the court that the child was in care without lawful authority given there was no consent from dad. Instead the judge, Mr. Justice Edward, now the administrative judge for Brantford Family Court "strongly suggested" in his endorsement of January 30, 2003 that the Brantford CAS bring in a protection application and so this very expensive court process to isolate this child from her family and place her for adoption began.

The Child and Family Services Act requires a Temporary Care and Custody Hearing to be completed within 35 days of apprehension, which in this case was February 3,2003, and a consent order is prohibited except in the best interests of the child. But our audit shows that did not stop the court allowing the lawyers to consent without a confirming consent from the parties and dispensing with a legislated Temporary Care and Custody hearing. There has not been a single trial in this matter where parents were given an opportunity to present the facts and have a judge listen and determine what the truth was. Evidentiary standards and their use in a court process as taught in our law schools have had absolutely no place in this matter.

The CAS are bound by the Child and Family Services Act to ensure parents are listened to and heard. There are many including the Honourable Children's Minister and the Ontario Childrens Lawyer who know this is not the case for this Brantford family who have often times not been served papers and thus were barred from the court room on many occasions. Further, bringing some of the very concerning matters involving the courts action to the attention of the Senior Regional Justice has not provided any accountability for the use of court and child protection resources in this manner -the child remains isolated, the family devastated and the public continue to foot an unnecessary and very expensive court resources and legal aid bill.

Yes, legal aid can make a difference in levelling the justice playing field but it is our experience that when it comes to CAS matters it is very rarely the case. We have had success in ensuring truth reigned and justice was served when those seeking our help were able to use the services of Mr. Ian Mang. However, he cannot take on every case and parents should be able to expect the same service from every lawyer no matter who they are and how they are paid. Our courts are reputedly about the truth, the whole truth and nothing but the truth. So why are those responsible for accountability within the court system not acting on the audit results. If the media began posing this question to those responsible including the Minister, the Attorney General and the Chief Justice perhaps the dream the Chief Justice talks about could well become reality. We hope and pray that day is soon so child protection and court resources that are presently being squandered for want of a better word, can be used where they will do the job they are supposed to be doing protecting children from those who would harm them. A December 10, 2006 Auditors Publication