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The Auditors December 24, 2006 Chief Justice Lennox The People of Ontario Honourable Mr. Justice T. Culver The Honourable Andrea Horwath for the Ombudsman of Ontario Dear Chief Justice Lennox, It is 5:25 p.m. on Christmas Eve and I have put aside family celebrations of the birth of my Lord and Saviour Jesus Christ, given how heavy it weighs on my heart that our audits show that a Brantford, Ontario girl has spent Christmas since 2002 unnecessarily isolated from her family. And, her newborn sister who should have been able to enjoy her first Christmas with her family is facing the same fate. The following complaint regarding the judicial conduct of Mr. Justice Edward and Mr. Justice Thibideau, which is known to their Senior Regional Justice, Mr. Justice T. Culver is not rashly brought to your attention. Indeed our auditors have spent eight months auditing the files, interviewing parties, relatives etc. and personally observing Mr. Justice Edward and Mr. Justice Thibideau in court and communicating with Mr. Justice T. Culver before taking this action. However, we are left with no alternative as responsible citizens who have become knowledgeable of the law being ignored in a long term child protection matter which a review of the files has lead us to beluieve the matter should have been disposed of the first time it was before Mr. Justice Edward, January 30, 2002 due to an application brought by the father in terms of the unlawful actions of the Brantford CAS that saw a 2 year old child removed from parental supervision without lawful justification. Judge R. James Williams of the Family Court for the Province of Nova Scotia, Dartmouth, Nova Scotia states in his article THE JUDGE`S ROLES AND RESPONISBILITIES IN CHILD PROTECTION CASES – Canadian Child Welfare Law ISBN 1-55077-018-7, page 322 states: ``I am more comfortable with the conceptualization of the judge having responsibilities, rather than a role. Responsibilities to what. I offer my own opinions:
The Honourable Mr. Justice R. James Williams has conceputalized two of the Principles of Judicial Office in this one paragraph which were approved by the Judicial Council in 1996. Unfortunately, it appears from my enquiries which have not been responded to that there has been no evaluative process to ensure those in judicial office earn the respect the law automatically gives them. ``Respect for the Judiciary is acquired through the pursuit of excellence in administering justice.``is the quote that precedes the Principles of Judicial Office. The following very significant indisputable facts have left no doubt in any of the minds who have reviewed the facts of this matter that the law, including the requirement to act in the best interests of a child, has not played an active part in the administering of justice in two matters before the Brantford Family Court from December 5, 2002 and July 13, 2006 respectively. December 5, 2002 a Temporary Care and Custody Agreement was signed by a Brantford mother who claims she was told if she did not sign the agreement her two children, a boy and a girl would be apprehended. The reason for the insistence for the TCA and foster placement by the Society was that the Society claimed an action of the father (he had placed a soap dispenser on his two year old daughter’s mouth when she refused to stop swearing – no soap went into her mouth given the top was on the dispenser) meant the little girl was in need of protection and that the mother had failed to protect the child from the father’s actions. The agreement was for both children to be placed in the care of the Society. The little girl went to a foster home, her brother to his maternal grandmother’s house. The natural father of the 2 year old girl and adopted father of the 9 year old boy had equal custodial rights to the natural mother of both children and lived in the same home as mother and the two children. He was not asked to and did not sign the Temporary Care and Custody Agreements and believed, therefore, that the agreements were not valid. It should be noted that the worker who remains as the worker in charge of several child protection matters was new to the Society and has admitted on the record that she had not, and still has not, completed her social work degree and her previous employment experience was Joeys Fish and Chips. The father made application to the family court in Brantford and the first hearing of the matter was January 30, 2003 just six days before the TCA was to terminate (February 5, 2003). The agreement made by the Brantford CAS and the mother was that they would both work to having the children returned to her care. The agreement concerning the little girl stated it could be terminated by 10 days notice on the part of the Brantford CAS or the mother and neither party had given such notice when the matter went before Justice Edward on January 30, 2003. All parties, therefore, expected the little girl to be returned to her mother’s home and are convinced she would have been but for the actions of Mr. Justice Edward when considering the application by the father where mother and the Society were parties and represented before the court. The father was represented by duty counsel, Mr. Patridge, and mother was represented by her lawyer, Mr. Birkin Culp and, were, therefore unable to personally object to the judge`s behaviour both on that day and the many that followed where the conduct is held, by all those reviewing our audit file to be outside the principles of judicial office and, perhaps, the law. Mr. Justice Edward states in his endorsement of January 30, 2003. It`s frustrating to review s.29 and not see who ought to be parties to the agreement (TCA). It speaks about a person but does that mean if one parent in a two parent household concludes he or she in a two person household is unable to care for a child he or she may then enter a temporary care agreement to the exclusion of the other co-habiting parent which is the case here. In response , the cohabiting parent has had to bring a CLRA application naming the society as a respondent which at a minimum can only be seen as novel and for the Society may have far graver consequences. I will adjourn my disposition in this case until February 3, 2003 at 10:00 a.m. but I would strongly suggest the Society have an application before the court at that same time. The agreement which was before Mr. Justice Edward as part of court file F21 03 stated: 4. The parent(s) agree to: ……. and it is a well established concept in family law (Mr. Justice Edward is now the Administrative Judge for Brantford Family Court) that both parents have equal custodial rights and responsibilities for their child unless a court orders differently and no such court order existed on January 30, 2003. And, further if one parent denies another parent their custodial rights the full force of the law, including international law, has been brought into effect on many occasions to ensure the child is returned so that parent and child can enjoy that custodial right. A review of the Criminal Code of Canada will show that a person who takes a child under 14 years of age out of a parent’s supervision without lawful justification is subject to being charged with abduction and there are many such instances where these charges have been laid as a review of the relevant case law will show. Mr. Justice Edward’s statement in his endorsement of January 30, 2003 which is underlined: In response , the cohabiting parent has had to bring a CLRA application naming the society as a respondent which at a minimum can only be seen as novel and for the Society may have far graver consequences. has been reviewed by many people and not one has been able to come up with an explanation for his comment other than Mr. Justice Edward was aware that to remove a child from parental supervision without lawful justification was a contravention of the Criminal Code. The Society at Mr. Justice Edward’s suggestion breached the Temporary Care Agreement and instead of returning the 2 year old girl as they had agreed would happen on February 5, 2003 instead brought a child protection application before Mr. Justice Edward on February 3, 2003. Mr. Justice Edward claims in his endorsement of February 3, 203 that the child remains in the care of the Society on consent but there is a denial on the part of the mother at the very least, we have been unable to interview the father, that consent was sought for their daughter to remain in care rather than the TCA agreement be upheld. From February 3, 2003 the due process outlined in the Child and Family Services Act and Rules of the Family Court was set aside in this matter by Mr. Justice Edward, the Society and the lawyers representing mother and grandmother. The process includes a Temporary Care and Custody Hearing and a Protection Hearing. Neither were held and a summary judgment for crown wardship no access was obtained on July 13, 2006 after mother and grandmother were not served notice of such summary judgment and the grandmother`s lawyer, who was terminated five months previous represented by the Society and claiming grandmother had consented to her grand-daughter being a child in need of protection and being made a Crown Ward with no access. Grandmother categorically denies giving any such consent and mother and grandmother deny consenting on the numerous occasions endorsements note on consent child will remain in the care of the Society. At no time did Mr. Justice Edward explain any of his decisions to the parents and several times he made his decisions knowing the parties were in the court house but were not invited to the court room. On July 10, 2006 the Brantford CAS used the foregoing circumstances to apprehend the sister of the child, who was the subject of Mr. Justice Edward`s suggestion that the Society bring a child protection application, directly from the hospital. Mr. Justice Edward also sat on this matter until a new lawyer agreed to follow the instruction of his client and asked Mr. Justice Edward to recuse himself, which he did, but continued to make an endorsement and adjourned a Temporary Care and Custody hearing outside the legislated timelines. On August 16, 2006 two motions were brought before Mr. Justice Thibideau by mother, grandmother and a sibling who was the subject of the TCA on December 5, 2002 and had the fortune to be placed in the home of his grandmother where he has lived ever since, which is now the home of his mother too. Father, mother and grandmother were all awarded joint custody of this male child of mother and adopted child of father as a result of the CLRA application first heard by Mr. Justice Edward on January 30, 2003. Mr. Justice Edward, however, refused to make the same disposition for the 2 year old – now six year old girl and instead because of his judgments up until July 13, 2006 she is now a Crown Ward without access and devastated by the fact that she has been told by the Brantford CAS that she will never see her grandmother again. The family, including the sibling are concerned this shows a gender discrimination on the part of Mr. Justice Edward given he has placed a male child in the care and custody of mom, grandmother and father but has refused to do so for a female sibling. The childs thoughts on how she feels about being separated from her mother and siblings has not been able to be clarified at this time by those undertaking the audit but from the report we have had we believe she is equally upset. All involved in this matter have agreed that if this child is not released back to her family when she becomes 16 the circumstances of her separation will be provided to her so she can take up her lawful right to take the actions she is entitled when her and her sisters charter rights are breached when her three brothers are not. Mr. Justice Thibideau on August 16, 2006 refused to hear one motion on the baby who had been apprehended and adjourned the second motion without considering that it should be heard to comply with the legislated time lines set out in The Child and Family Services Act and Rules of the Family Court. Further, he has sat in judgment on all the hearings for the baby and the audit shows he has ignored mothers rights to be at the counsel table and the process set out in The Child and Family Services Act and the Rules of Family Court for child protection matters. Mr. Justice Thibideau has also taken carriage of the hearings on the motion to set aside the judgment of July 13, 2006 for the Crown Wardship with no access. His judgments thus far show a bias to the Society who have yet to place any evidence on the court record that either child is in need of protection and he has ignored the requirement under the Child and Family Services act to state why the child cannot be cared for by the mother in the case of the baby apprehended from the hospital July 10, 2006. We believe Chief Justice Lennox needs to immediately review the files in this matter, confirm the facts set out in this letter and take the appropriate action in terms of judicial accountability. As a child advocate who believes from the indisputable evidence set out in court files F21 03, C38 03 and C307 06 that the Section 7 charter rights of two children and several family members have been violated by two judges and several lawyers and there is cause to believe that The Criminal Code of Canada has been contravened in this matter with the full knowledge of those who hold judicial office; I will have no alternative other than to pursue this matter to the full extent of the law if immediate action is not taken by Chief Justice Lennox to review the circumstances of the Crown Wardship and temporary care placement of these two children and assurances given that there will be the accountability referred to by Mr. Justice R. James Williams in the chapter devoted to his perspective in Canadian Child Welfare Law. It is now 7:35 p.m. on Christmas Eve and my heart remains heavy. This evening I will celebrate with other families around the world the freedom our children enjoy to choose whether or not to celebrate Christmas Eve at a candle light service that goes into Christmas Day. I will be praying at this service that next Christmas in Ontario we can be assured from the steps you have taken to review child protection files throughout Ontario, particularly those identified by our audits, that all children in care of the Societies that are responsible for child protection in Ontario are there for good reason and not precipitated by circumstances such as happened on January 30, 2003 when Mr. Justice Edward stated in an endorsement of the court ….. and for the Society may have far graver consequences and I will adjourn my disposition in this case until February 3, 2003 at 10:00 a.m. but I would strongly suggest the Society have an application before the court at that same time. I do not know whether you celebrate Christmas, Chief Justice Lennox, but I am sure that you understand that it is not just those who celebrate Christmas who are appalled at these circumstances that have been uncovered by our audits of Brantford family court which also show the problem is not restricted to any one colour or creed it affects us all. Family income is, however, usually a consistent factor. There are no rich kids in care that we know of. Respectfully, Anne Marsden (Mrs.)
Posted by Dufferin VOCA.
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