'Operating in the dark': How much detail courts get in child protection cases depends on where you live

Little is revealed at the outset of Manitoba child protection cases about why kids are taken into care, a recent CBC investigation into child protection court found — but lawyers in two other provinces say that’s not the case where they practise. 

But they also said that they’re up against many of the same challenges those working on CFS cases in Manitoba face: court delays, heavy caseloads and a system that isn’t designed to deal with the complicated nature of families. 

CBC looked at court documents in four different child protection cases in Manitoba, all of which provided few details on why the children were apprehended in the first place. When CBC sat in on proceedings at the child protection court earlier this year, few details were provided there, either.

Wil Hedges, a Winnipeg lawyer who specializes in child protection cases and who represents families with children in the system, said this lack of detail isn’t uncommon. 

“There might be one sentence [in a court document] about concerns about … addiction, or concerns about mental health. It might be very, very general, with no specific examples,” he said. 

“It makes it difficult for us to figure out how we can encourage our clients to work on a case plan, and work toward resolution of the concern.”

Child protection matters are closed to the public in court, but media are allowed inside. CBC attended some matters and reviewed documents to gain a better understanding of how the child welfare system functions. (Tyson Koschik/CBC)

But Sarah Clarke, a lawyer with Toronto’s Clarke Child and Family Law, said she can’t remember ever being on a case where there wasn’t an affidavit filed when a child was apprehended.

In Ontario, once a child is taken into care, the case has to be heard in court within five days — a similar timeline to Manitoba’s system. What’s normally filed in court is an affidavit from the child protection worker who was most involved with the family, she said.

“I think that they do try to do a good job on the first affidavit. It does vary, but there usually will be an affidavit accompanying,” Clarke said.

Gregory Englehutt, a lawyer with Nova Scotia Legal Aid, said when a child welfare agency makes an application for a child to be apprehended, he usually has a very good sense of what is going on with a family at the outset of court proceedings.

The agency will usually file a court application, which is three to four pages long and goes over their general concerns and the grounds for their involvement.

They’ll also file an affidavit from the social worker who is most involved with the family, “and typically they’re quite detailed,” Englehutt said. 

“I’ve seen some of the shorter affidavits — those that were … 14, 15 pages — but a lot of times they are longer.”

‘Next to nothing’ in Saskatchewan 

But in Saskatchewan, lawyer Sheri Woods says the amount of information the court receives is “next to nothing” in the days after a child is taken into care.

“It’s usually just a couple of paragraphs summarizing why they’re making a court application,” she said. 

That may just say, for example, “that we had a mobile crisis report, there was domestic violence in the house, and … the workers attended and there were kids present and nobody was sober, so we apprehended.”

Sheri Woods is a family lawyer in Saskatchewan who represents parents in child protection matters. (Submitted by Sheri Woods)

Woods, who has worked as a child protection lawyer for a decade, says that makes it very difficult to do anything for her clients in the days and weeks that follow. 

“We’re quite often in a place where we can’t even contest things until they file the rest of their documentation, and that’s usually weeks down the road,” she said. 

“I’m usually operating in the dark until I get that.”

A broken system? 

As of Dec. 31, 2018, there were 3,199 children and youth in the care of the Minister of Social Services in Saskatchewan — approximately 75 per cent of whom were identified as Indigenous, a provincial spokesperson said.

In Manitoba, 10,714 children were in care as of March 2018, 90 per cent of whom were Indigenous, according to the province’s Department of Families. 

In Saskatchewan’s three largest centres, Saskatoon, Regina, and Prince Albert, there are special days to just deal with child protection matters in the Family Law Division in Court of Queen’s bench. 

Those days are “insane” Woods said, sometimes dealing with 50 to 70 matters in single day. 

Overall, Woods says, the system in Saskatchewan is broken.

Court delays often cause complications, and there are currently no legislative timelines for when child protection matters need to be resolved in the province’s courts, she said. 

“It’s not a hot and sexy topic for the government to address, so it’s just not,” she said. 

“It’s pretty much a big mess.”

In Ontario, how quickly things get resolved depends on where you are, said Toronto’s Clarke.

Child protection matters in Toronto are heard several days a week. But in smaller northern cities, getting court time is more of a struggle, which causes delays and potentially has a very harmful impact on families, she said. 

For example, a parent may make a significant change in their life in an effort to get their kids back, and feel they have enough evidence to ask the court to return their child.

But if they can’t get court time, they may not be able to make their case for weeks, or even months, said Clarke.

“That has been my experience in the north on a number of occasions … whereas I find in Toronto, generally, the courts will have more much more availability.”

The current system in Ontario sometimes doesn’t respond to how fluid a family’s situation can be, she said.

“The resources that are required to support and service families are lacking,” said Clarke.

“And it’s very challenging … for the court to deal with the fluidity of a family in the context of a child welfare case, because as you can imagine, every time you go to court, things have happened within the family.”

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