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October 28, 2013 permalink
When Chatham-Kent CAS hires a private investagator to track parents in an effort to gain crown wardship and adoption of three children, the family is not entitled to view of copy of the investigator's report.
Parents hampered in efforts to hold onto their children
Parents have hit a judiciary brick wall in their attempt to keep their family intact.
An Ontario Court judge has ruled evidence allegedly gathered by private investigators hired by the Chatham-Kent Children's Services to watch the parents does not need to be shared with the couple unless they can show they are somehow prejudiced by the information being withheld.
An anonymous letter plus a photocopy of the judge's ruling sent to The Daily News maintains the CKCS is seeking a Crown wardship for the purpose of adoption of the couple's three young children who are currently in foster care.
The family can't be identified under the Family Law Act.
The letter is signed "anonymous lawyer in Chatham" and suggests CKCS hired private investigators who were seen by independent witnesses taking photographs through the windows of the mother's residence.
There is also an assertion the father was followed to make sure he was not breaching any court orders involving his children.
According to court documents, the ruling followed a disclosure motion heard on Oct. 8.
The parents were represented by a lawyer at Legal Aid Ontario (LAO) and Doug Desmond, a lawyer in private practice in Ridgetown.
"This isn't the sort of thing LAO comments on it is not only a policy, but actually law, that we not comment on cases or do anything that would acknowledge or deny that someone was a legal aid client," said Kristian Justesen, spokesperson for LAO, when contacted by The Daily News.
Desmond said there is nothing worse a court can do then take your children away from you.
He argued the disclosure motion citing case law used in criminal proceedings to open records that could benefit the parents during a trial.
Desmond said the finding has widespread implications.
"You don't see the accused talk to the Crown unless they are defending themselves. Parents are constantly without counsel talking to the CAS," Desmond said.
The author of the anonymous letter expressed concern that the CKCS may now at its discretion hire private investigators, assessors and supervisors of access and where their findings are "not in harmony with the agency's theory of a case, they may now claim litigation privilege and hide the evidence ... even where the evidence could result in the return of children to their parents."
Stephen Doig, interim executive director at CKCS, said legal proceedings often include motions with a variety of requested outcomes.
"Where a judge grants the motion all the parties are obliged to abide by that order," Doig said.
Desmond said the parents are now considering an appeal of the judge's order.
Source: Chatham Daily News
Addendum: Here is the decision on CanLII. According to judge Stephen J Fuerth the report stemming from a CAS effort to enforce a shotgun divorce falls under solicitor-client privilege and can be withheld from the affected couple.