Tuesday 7 March 2000

Ottawa couple battles for their seized child

Dave Brown
The Ottawa Citizen

Watching a televised replay of submissions to the Supreme Court of Canada may not seem like a fun way to spend a Sunday morning, but in one Ottawa living room, a couple found the viewing riveting.

The Feb 25 hearing was broadcast Sunday by CPAC. The issue the court is being asked to rule on is whether current child protection methods violate the rights of parents under the Charter of Rights and Freedoms.

It focuses on a Winnipeg case. In 1996, protection workers, without a warrant, removed a baby from a hospital nursery. The child's mother, known only as K.L.W., alleges her constitutional rights to liberty and security were violated by being separated from her infant while she was still breastfeeding. Parents in child protection cases can't be identified.

The underlying issue is: does the child protection system have the power to apprehend a child in this manner? And as one of the judges asked: Why is a hospital nursery considered a dangerous place?

The Ottawa parents have long wondered the same thing. The daughter they lost was five hours old when she was removed, by a caseworker without a warrant, from a nursery at the Civic site of the Ottawa Hospital. The child has since disappeared into adoption. She'll turn seven this week.

"Knowing she's alive means there's no closure," says the mother. "I think about her every morning when I wake up."

They are still waging legal war against the system. In February last year, a judge ruled the loss of that daughter was a result of a series of errors. At the same time, Judge Robert Fournier showed the system, which openly says it errs on the side of caution, doesn't correct errors. He told the parents to get on with their lives. "C'est la vie."

Sunday's viewing brought back painful memories for the Ottawa mother.

"I delivered by natural childbirth and I was tired. I had been to the nursery twice to see the baby and finally managed to fall asleep. It couldn't have been more than half an hour before they woke me up. She (Children's Aid Society caseworker) said: 'Say goodbye to your baby.' There were four people in the room: two nurses and two CAS workers. The baby was bundled into a car seat."

Ten days went by before she saw her baby again. Then she was allowed to see and hold the child three times a week for a year as the legal process ground on, and led to adoption.

In the Winnipeg case, the protectors point to the mother's alcohol abuse, and past history. In the Ottawa case, the system was acting on allegations of child sex abuse, drug abuse and prostitution, all since disproved.

The woman has borne eight children, but is the mother of only three. Allegations of abuse, while she was out of the country, resulted in authorities apprehending her first three children in 1991. She was still fighting that when the baby was removed from the nursery. She has since been declared a good mother and has three children in her care.

The missing child is in legal limbo. Fearing it too would be seized, the woman went to the United States for the birth in 1995 and left the baby in the care of relatives. The relatives caring for her don't want to give her up. They are fighting for permanent custody, claiming the baby was abandoned.

The trigger that caused the family to be so torn apart was a phone call to child protectors in 1991. Denials through years of court work now show nobody willing to admit making the call and it prompted one of the many judges, Justice Dan Chilcott, to observe: "It must have been Caesar's ghost."

Judge Fournier ruled the system went wrong in the Ottawa case, but so far, that ruling has been of no benefit to the parents. Working with an industrial strength copying machine in their home, they are doing to the system what it did to them. They file motions and flood the system with paperwork. They say they will never stop.

They, too, plan to appeal to the highest court. They have in hand the ruling that said the protection system went wrong. That's not working for them because one of the judges, Justice Ken Binks, in 1997 reacted to their endless court battles by ruling them "frivolous and vexatious." Now as they try to move their proved case up through the system, they find the Binks ruling blocking the way. They can and will have it removed, but it will take time.

The Ottawa couple say they want their children back. Adoption makes that unlikely. So they talk about lawsuits, and they talk big numbers.