child welfare Archives - LawNow Magazine

New Resources at CPLEA – Vol. 42:4

March 6, 2018 By Aaida Peerani

LawNow has created a Department called New Resources at CPLEA, which is now a permanent addition to each issue. Each post will highlight what’s new, updated/revised or popular at CPLEA. All resources are free and available for download. We hope that this will raise awareness of the many resources that CPLEA produces to further our commitment to public legal education in Alberta. For a listing of all CPLEA resources go to: www.cplea.ca/publications

Check out CPLEA’s new FAQs on:

Visit: Canadian Legal FAQs for a full listing of Alberta and National frequently asked questions.

CPLEA’s Families and the Law: Child Welfare Series of publications are now available.

There are too many people and organizations to name, but this was truly a community effort. Thank you to all for your valuable input.

For a listing of all CPLEA family law publications see: www.cplea.ca/publications/family-law

New Resources at CPLEA – Vol. 42:3

January 5, 2018 By Aaida Peerani

Now Available online and in print

CPLEA’s Families and the Law: Child Welfare Series of publications are now available.

There are too many people and organizations to name, but this was truly a community effort. Thank you to all for your valuable input.

For a listing of all CPLEA family law publications see: www.cplea.ca/publications/family-law

Celebrating Anniversaries: A Year after CHRT’s Ruling on Discriminatory Funding of Welfare Services for First Nations Children

March 2, 2017 By Edward Apolonio

January 26, 2017 marked the first-year anniversary of the Canadian Human Rights Tribunal’s (“The Tribunal”) landmark decision regarding the issue of funding for child welfare services provided to First Nations children on reserve and in the Yukon. The complaint was filed in 2008 by the First Nations Child and Family Caring Society of Canada (“the Caring Society”) and the Assembly of First Nations (“AFN”). The case was filed against the Indian Northern Affairs Canada (“INAC”), known at the time of the hearing as Aboriginal Affairs and Northern Development Canada (“AANDC”). The Caring Society and AFN alleged AANDC discriminates against 160,000 First Nations children living on reserve and in the Yukon, on the basis of race, by providing insufficient and inequitable funding for child and family services. The Tribunal held that this claim was substantiated and accordingly, it ordered AANDC to cease its discriminatory practices.

The second non-compliance order was subsequently followed by a unanimous vote in the House of Commons in November of last year, supporting an NDP motion compelling the federal Liberal government to end the systemic discrimination against First Nations children on reserves. Even before the decision was released, numerous studies have already found that First Nations children were receiving only 70 cents (up to 78 cents) on the dollar compared to non-Aboriginal children. Research reveals that concerns of this type were raised to the government in the early 1900s, but have been largely ignored. Consequently, due to the lack of support and chronic underfunding of child and family services geared towards First Nations children, significant numbers are taken into foster care. Put differently, in comparison to non-Aboriginal Canadian children, First Nations children are reportedly eight times more likely to be in welfare/ foster care.

At the same time, there is a lack of clarity between the federal and provincial/ territorial governments regarding who should pay for services that First Nations children need. In effect, First Nations children are falling victim to such disputes that are worsened by the governments’ failure to fully implement “Jordan’s Principle”. Jordan’s principle was named in memory of Jordan River Anderson, a little boy who spent two years in the hospital and died there while the Province of Manitoba and the federal government argued over who should pay for his at-home care. Such disputes are not uncommon according to the Caring Society. They leave First Nations children denied or waiting for services they desperately need such as education, health, childcare, and culture and language services that are readily available to other Canadian children. Jordan’s Principle calls on the government of first contact to pay for services, which can be reimbursed later, so that children can get the services they need as early as possible without getting caught in governmental red tape.

In its landmark decision, the Tribunal found sufficient evidence to establish a prima facie case of discrimination under section 5 of the Canadian Human Rights Act (CHRA). The decision made it clear that the AANDC discriminated against 160,000 First Nations children, in contravention to section 2 of the CHRA, which gives legal effect to the principle that “all individuals should have an opportunity equal with other individuals [to live their lives accordingly]…without being hindered from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, and sexual orientation, [among others].”

There is no sufficient evidence that real significant progress is taking place when it comes to addressing the issue of underfunding child welfare services for First Nations children.According to the Tribunal, the AANDC’s management of the welfare program for First Nations children on reserve, and the corresponding discriminatory underfunding of such services created adverse impacts for many First Nations children and families. The discriminatory funding for such services hindered agencies from providing adequate, let alone culturally appropriate, services to the children and families. The funding formula also perpetuated and provided incentives to remove children from their homes and bring them into foster care. Additionally, because of the narrow definition and inadequate implementation of Jordan’s Principle, First Nations children experience delays and denials of child services that are otherwise available to other Canadian children.

Sadly, as the Tribunal aptly stated in its decision, “It is only because of their race and/or national or ethnic origin that [First Nations children and families] suffer the adverse impacts outlined above…Furthermore, these adverse impacts perpetuate the historical disadvantage and trauma suffered by Aboriginal people, in particular as a result of the Residential Schools system.”

After finding that the complaint was substantiated, the Tribunal made an order against AANDC pursuant to section 53(2) of the CHRA. The finding of discrimination addressed the Caring Society’s request for declaratory relief. Also, pursuant to section 53(2)(a) of the CHRA, AANDC was ordered “to cease its discriminatory practices and to cease applying its narrow definition of Jordan’s Principle and to take measures to immediately implement the full meaning and scope of Jordan’s Principle.”

When the decision was released, Cindy Blackstock, the executive director of the Caring Society, expressed her hopes that the ruling would lead to real action on the ground. Indeed, according to the Tribunal, it is up to INAC and the federal government “to implement the Panel’s findings and orders, and to clearly communicate how it is doing so, including providing a rationale for their actions and any supporting data and/or documentation [that] ensures the Panel and the parties that this is indeed the case.”

Jordan’s Principle calls on the government of first contact to pay for services, which can be reimbursed later, so that children can get the services they need as early as possible without getting caught in governmental red tape.

Months before the Tribunal’s ruling, Prime Minister Justin Trudeau made public his ministerial mandate letters, which outline the policy objectives that his government wanted to pursue. He stated that no relationship is more important to him and to Canada than the one with indigenous peoples. Furthermore, one of the mandated highlights focuses on making real progress on issues such as housing, employment, health and mental health care, community policing, child welfare and education. Not surprisingly, many advocates of First Nations children and families were enthusiastic about progress, particularly after the Tribunal released its ruling in the case.

After one year has passed, the only thing that appears to be worth celebrating are merely anniversaries. There is no sufficient evidence that real significant progress is taking place when it comes to addressing the issue of underfunding child welfare services for First Nations children. Immediately after the ruling the federal government committed $634.8 million to support welfare services for children and families on reserve. It may sound like a huge financial commitment, but it is an investment over five years. Out of that commitment, in 2016, $71 million was allotted for child welfare – an amount that falls $155 million short of what the Caring Society estimated as the amount required for immediate relief. It is even well below the $108 million that the federal government had initially estimated. Out of the $71 million, only $60 million was invested into services for the children, according to Cindy Blackstock. To make matters worse, additional funding is still required for the full implementation of Jordan’s Principle.

On April 26, 2016 the Tribunal released its first non-compliance order (2016 CHRT 10) against the federal government for failing to comply with the order requiring the government to fully implement Jordan’s Principle. The Tribunal also ordered INAC to provide more details regarding its $71 million allotment, since it had failed to prove that the allotment was sufficient to alleviate the discrimination against First Nations children. On May 9, 2016, the day before the federal government was required to file its final submission in compliance with 2016 CHRT 10, INAC made a unilateral announcement of up to $382 million for the implementation of Jordan’s Principle. INAC made the announcement without providing details about which children are eligible for the funding, when and how the funds will be released, and how this ensures the full implementation of Jordan’s Principle. If anything, this announcement demonstrates a pre-emptive and non-collaborative maneuver by the federal government to escape criticism regarding its compliance with the CHRT’s ruling. Moreover, according to Cindy Blackstock, out of the $382 million, to date the federal government has spent only $11 million on children since the announcement in May 2016.

On September 15, 2016, the Tribunal released a second non-compliance order (2016 CHRT 16). It found INAC to be in violation of both the Tribunal’s January 26 ruling, and the subsequent non-compliance order (2016 CHRT 10). According to a report by the Caring Society in November 2016, INAC not only failed to comply with the ruling of the Tribunal, it also fought First Nations children and their families in court after they sought equitable health services. In one case, INAC spent more than $32,000 fighting a First Nations teenager in need of medical care, instead of paying for the $8,000 needed for her medical treatment. Indeed, as the Tribunal stated in 2016 CHRT 16, INAC appears to still operate with the same “old mindset” that “led to discrimination” and the filing of the complaint in the first place (the Caring Society).

Sadly, as the Tribunal aptly stated in their decision, “It is only because of their race and/or national or ethnic origin that [First Nations children and families] suffer the adverse impacts outlined above…The second non-compliance order was subsequently followed by a unanimous vote in the House of Commons in November of last year, supporting an NDP motion compelling the federal Liberal government to end the systemic discrimination against First Nations children on reserves. The motion called for the immediate injection of $155 million to end the discriminatory funding of child welfare services for First Nations children.

Despite the Tribunal’s ruling more than a year ago, it appears that we are still waiting for real progress. It does not help to hear about the significant number of suicides and suicide attempts by First Nations children in various communities across the country. It is hard to acknowledge that the government is truly committed to reconciliation, when it cannot honour its legal and moral duty to First Nations children in a timely manner.

While the government takes its time in implementing measures to end the discrimination against First Nations children, the number of children experiencing adverse impacts of such discrimination is increasing. It makes it look like we never truly learned from the horrors of our history.

2017 is the year of celebrating anniversaries, including that of the Tribunal’s ruling and Canada’s 150^th. There is a dilemma: celebrating 150 years of triumph and progress for Canada may hide the fact that, even in 2017, we are still failing First Nations and other Aboriginal communities; we are failing so many of our children, and in essence we are failing the future of this country. It is utterly sorrowful to think that while many of us are excited to celebrate Canada’s 150^th, members of First Nations communities and other Aboriginals are remembering the anniversaries of the deaths of loved ones; they are counting years of harrowing experiences that stem from discriminatory and racist policies and attitudes. Certainly, there is no better time than right now for the federal government to comply with its legal obligation and do everything in its power to address the historical and ongoing discrimination against First Nations children and families.

BenchPress – Vol 40-6

June 28, 2016 By Teresa Mitchell

1. CRA loses out to Solicitor-Client Privilege

The Canada Revenue Agency (CRA) sent a lawyer a request to produce documents about his personal finances and also his current accounts receivable. The lawyer provided some material but refused to produce his current accounts, claiming that to do so would violate solicitor-client privilege, since it would reveal his clients’ names. The Federal Court and the Federal Court of Appeal sided with CRA, but the Supreme Court of Canada disagreed. The unanimous judgment stated: “Solicitor-client privilege has evolved from being treated as a mere evidentiary rule to being considered a rule of substance and, now, a principle of fundamental justice. An intrusion on solicitor-client privilege must be permitted only if doing so is absolutely necessary to achieve the ends of the enabling legislation.” The Court noted that the definition of “solicitor-client privilege” in the Income Tax Act is very clear and lawyers’ accounting records are expressly excluded. It further noted that solicitor-client privilege belongs to the client and can only be waived by the client.

Minister of National Revenue v. Thompson 2016 SCC 21 (CanLII)

http://www.canlii.org/en/ca/scc/doc/2016/2016scc21/2016scc21.html

2. “Morally Blameworthy Conduct”

An Alberta couple has been convicted of failing to provide the necessaries of life to their 18-month-old son. Baby Ezekiel fell ill, with symptoms including a fever, difficulty breathing and swallowing and decreased appetite. Over several weeks, as his symptoms worsened, his parents treated him with naturopathic remedies, natural supplements, fluids, fresh air and humidity. They did not take him to a doctor. One evening, Ezekiel stopped breathing. His dad called 911 but cancelled the call when the baby began breathing again. The family set out to the hospital but Ezekiel again stopped breathing. An ambulance met the family car and took over the baby’s care. Several days later, doctors at the Alberta Children’s Hospital Pediatric Intensive Care Unit declared the baby brain dead and life-sustaining therapies were discontinued. The parents were convicted by a jury of failing to provide the necessities of life to their son. In a Finding of Fact as a preliminary to sentencing, Justice R.A. Jerke found:

A reasonably prudent person without medical training would have realized that Ezekiel needed medical attention;
A reasonably prudent and ordinary person would have foreseen that failing to provide medical attention would endanger Ezekiel’s life; and
A reasonably prudent person would have taken Ezekiel to a doctor.

Justice Jerke concluded: “Mr. and Mrs. Stephan did not provide Ezekiel with medical attention. This was a failure of their legal duty to provide necessaries of life. It was a marked departure from the required standard of care. It is morally blameworthy conduct.”

Justice Jerke sentenced the dad, David Stephan to four months in jail and the mom, Collet Stephan to three months of house arrest.

R v. Stephan 2016 ABQB 319 (CanLII)

http://www.canlii.org/en/ab/abqb/doc/2016/2016abqb319/2016abqb319.html

3. Fetal Alcohol Syndrome as a Mitigating Factor in Sentencing

The Manitoba Court of Appeal has reduced a convicted offender’s sentence for manslaughter from six years to four because he suffers from Fetal Alcohol Syndrome. Justice Monnin wrote: “an offender’s moral blameworthiness may be reduced if he suffers from an FASD-related diagnosis and there is a connection between the condition and the offence for which he stands charged.” He noted that the trial judge chose a lengthier sentence for reasons of public safety over the accused’s rehabilitation. However, Justice Monnin stated:” …it would be inappropriate…to give up on the accused and park him in a penitentiary for an additional period of time on the basis of his partial FAS diagnosis.” He added that learning how to control and modify behaviour can be a form of rehabilitation and should be considered in sentencing, even if the condition that produced the illegal behaviour cannot be cured.

v. Friesen, 2016 MBCA 50 (CanLII)

http://www.canlii.org/en/mb/mbca/doc/2016/2016mbca50/2016mbca50.html

Canadian Human Rights Tribunal Sets the Stage for First Nation Discrimination Cases

March 1, 2016 By Linda McKay-Panos

In late January, 2016, the Canadian Human Rights Tribunal (Tribunal) ruled that children living on First Nations reserves have been discriminated against because of underfunding of education and child welfare. (see: First Nations Child and Family Caring Society of Canada et al v Attorney General of Canada (for the Minister of Indian Affairs and Northern Development Canada), 2016 CHRT 2 (CanLII) (online https://www.canlii.org/en/ca/chrt/doc/2016/2016chrt2/2016chrt2.html). Canadians who are not First Nations may be surprised to learn about the issue of underfunding because there is much misinformation about issues of funding of First Nation peoples’ families and communities.

In Canada, legislative power is divided between the federal government and the provincial/territorial governments. Under section 91(24) the Constitution Act, 1967, the federal government was provided with exclusive legislative authority over “Indians and Lands Reserved for Indians”. The federal government enacted s 88 of the Indian Act RSC 1985, c I-5, which provides that all laws of general application that are in force in any province apply to Indians. This means that provincial child welfare legislation and standards apply to First Nations and peoples on reserves.

…the provision of child and family services between AANDC and First Nations on reserves and in Yukon is reinforced by the federal government’s constitutional responsibilities and its special relationship with Aboriginal peoples.In addition to the legislative power held by the federal government, there exists a special relationship between the Crown and Aboriginal peoples. This special relationship gives rise to a fiduciary duty between the federal Crown and the Aboriginal peoples of Canada (see section 35 of the Constitution Act, 1982 and R v Sparrow, [1990] 1 SCR 1075), which could include the provision of child and family services on reserve (Alberta v Elder Advocates of Alberta Society, 2011 SCC 24).

At issue in this case were the activities of the Aboriginal Affairs and Northern Development Canada (AANDC) [now called Indigenous and Northern Affairs Canada] in managing its First Nations Child and Family Services Program (FNCFS). The FNCFS program was initially developed to address concerns over the lack of child and family services provided by the provinces. It is to provide culturally appropriate child and family services to First Nations children and families on reserve. The services should be reasonably comparable to the services provided to other provincial residents in similar circumstances.

The Complainants, the Caring Society and Assembly of First Nations, argued that AANDC discriminates on the ground of race and/or national or ethnic origin when providing child and family services to First Nations on reserve and in Yukon, because they provide inequitable and insufficient funding for these services.

The Tribunal noted that in order to make out the discrimination complaint, three elements must be demonstrated:

First Nations have a characteristic or characteristics protected from discrimination;
they are denied services or are adversely impacted by the provision of services by AANDC [under s 5 of the Canadian Human Rights Act ]; and
the protected characteristic(s) are a factor in the adverse impact or denial.

Section 5 of the CHRA provides:
5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public

(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination.

(1) Characteristics protected from Discrimination

The first element was easily dealt with as First Nations possess the characteristics of race and national or ethnic origin as prohibited grounds of discrimination.

(2) “Service”

The second element was more contentious, as it required the Complainants to prove that AANDC was involved in the provision of a service under s 5 of the CHRA and if so, to demonstrate that First Nations were denied services, or were adversely impacted by AANDC’s involvement in the provision of those services.

First, the Tribunal must determine what constitutes a “service”. Second, the Tribunal must determine whether the services create a public relationship between the service provider and the service user.

The Tribunal held that funding can constitute a service within the meaning of s 5 of the CHRA. Further, First Nations, particularly First Nations on reserve, are a distinct public. In addition, AANDC extends the assistance or benefit of the FNCFS Program and other related provincial/territorial agreements to this public through FNCFS Agencies and the provinces or territories. The Tribunal also noted that the public relationship in the provision of child and family services between AANDC and First Nations on reserves and in Yukon is reinforced by the federal government’s constitutional responsibilities and its special relationship with Aboriginal peoples.

(3) Causal Connection Between the Protected Characteristic(s) and the Adverse Impact or Denial

In general, child welfare services are intended to protect children from neglect and abuse (sexual, physical or emotional) and to prevent these difficulties through public awareness and education on healthy families and early intervention, followed by crisis services.

The Tribunal discusses the various funding agreements for child and family services with the over 100 FNCFS Agencies across Canada. It also notes that there have been multiple reports examining the FNCFS. For example, the National Policy Review reported: …the funding formula under Directive 20-1 inhibited FNCFS Agencies’ ability to meet the expectation of providing a comparable range of child and family services on reserve for a number of reasons, such as:

The formula provides the same level of funding to agencies regardless of how broad, intense or costly, the range of service is;
Variance in the definition of maintenance expenses from region to region, resulting in AANDC rejecting maintenance expenses that ought to have been reimbursed in accordance with provincial/territorial legislation and standards;
Insufficient funding for staff and not enough flexibility in the funding formula for agencies to adjust to changing conditions (increases in number of children coming into care; development of new provincial/territorial programs; or, routine price adjustments for remoteness);
There has not been an increase in cost of living since 1995-1996;
Funding only provided to new FNCFS agencies for 3 year and 6 year evaluations; however, provincial legislation requires on-going evaluations;
First Nations have to comply with the same administrative burden created by change in provincial legislation but have not received any increased resources to meet those responsibilities, contradicting the principle of Directive 20-1;
Unrealistic amount of administration support to smaller agencies, often compounded by remoteness;
The maximum annual budgetary increase of 2% did not reflect the average annual increase of 6.2% in the FNCFS Agencies;
The average per capita per child in care expenditure was 22% lower than the average in the provinces; and
The formula does not provide adequate resources to allow FNCFS Agencies to do legislated/targeted prevention, alternative programs and least disruptive/intrusive measures for children at risk.

In addition, a report of the Auditor General in 2008 concluded that the funding formula did not treat First Nations or provinces in a consistent or equitable manner.

Canadians who are not First Nations may be surprised to learn about the issue of underfunding because there is much misinformation about issues of funding of First Nation peoples’ families and communities.The AANDC argued that the numerous studies of the FNCFS should have little weight; that differences between level of services and programs offered on and off reserve may have little to do with funding and more about choices made by FNCFS about the service and programs they provide; and that the complainants did not provide any evidence to compare different funding models. However, the Tribunal found that many of the reports were highly relevant and provided reliable evidence. There was some comparative evidence presented that demonstrated a difference between child and family services funding and service levels provided on and off First Nations reserves.

While the provincial legislation’s focused on prevention and using the least disruptive measures in meeting the best interest of the child, the federal funding programs stated their goal was to provide culturally relevant child and family services on reserve. However, the federal government actually provided funding on a fixed basis without considering the specific needs of communities or individual families.

The Complainants alleged that “Jordan’s Principle” was not being applied for First Nations children. The Tribunal wrote:

Jordan’s Principle is a child-first principle and provides that where a government service is available to all other children and a jurisdictional dispute arises between Canada and a province/territory, or between departments in the same government regarding services to a First Nations child, the government department of first contact pays for the service and can seek reimbursement from the other government/department after the child has received the service. It is meant to prevent First Nations children from being denied essential public services or experiencing delays in receiving them [emphasis original].

The Tribunal concluded the adverse effects generated by the FNCFS program and other provincial/territorial agreements perpetuated disadvantages historically suffered by First Nations people. The Tribunal also held that race and/or national or ethnic origin is a factor in the adverse impact on First Nations children and families. The Tribunal relied on evidence of the historical disadvantages endured by Aboriginal peoples, such as the residential schools and their long-standing impact on child welfare matters. Finally, the Tribunal referred to Canada’s international commitments to children (Convention on the Rights of the Child) and Indigenous peoples (e.g., Universal Declaration on Human Rights, and Declaration on the Rights of Indigenous Peoples).

As for remedies, the Tribunal ordered that the AANDC remove most discriminatory aspects of the funding schemes it uses to fund FNCFS Agencies. The Program and Agreements should be reformed. The AANDC was also ordered to cease applying a narrow definition of Jordan’s Principle, and to take measures to immediately implement its full meaning and scope.

Those who work closely with First Nations believe that this human rights decision will open the door to a number of claims to address the fact that (per Katherine Hensel ): “discrimination infuses the entire relationship between the federal government and First Nations….[in the provision of] government services” (Nicole Ireland, CBC News (27 January 2016).

Whatever Happened to … Scandalous Criminal Allegations: the Miazga Case

February 3, 2016 By Peter Bowal and Aleksandar Gvozdenovic

Introduction

Miazga v. Kvello Estate is a tragic, yet fascinating, case which reminds us of the devastating power of criminal prosecution to ruin innocent lives and the near impossibility to hold Crown prosecutors legally accountable when that happens [(2009) 3 SCR 339, 2009 SCC 51 http://canlii.ca/t/26g27].

Facts

In 1989, Michael, Michelle and Kathleen Ross (aged 7 to 10 years) began to accuse their biological parents, foster parents and extended family members of sexual and ritual abuse. Michelle, in a videotaped interview with Saskatoon police and therapists, described horrendous rituals that they were made to witness and endure, including acts of infanticide, cannibalism, drinking human blood, being forced to eat their own excrement, and perform sex acts. Although the allegations were preposterous and lacked any credible evidence, the prosecution was unrelenting.

On July 10, 1991, 16 people were charged with almost 70 counts of sexual assault. In fact it was Michael who was abusing his sisters, coercing them into performing and participating in sexual acts. This was known to the Klassens, who urged Social Services to transfer him to a different foster home, which they eventually did. Michael had a difficult early childhood growing up with deaf, mute, alcoholic and allegedly sexually abusive parents.

Michael then accused the Klassens of sexual assault, claiming that he was concerned about the safety of his sisters. Social Services did not separate Michael from his sisters, even though the new foster parents noted and reported similar behaviour. The investigating police officer and therapist largely ignored this when it came up. They focused on gathering evidence against the adults.

The accused adults were troubled by the investigation. They believed the investigators had prompted the children to lie by providing examples of sexual and ritual abuse, by encouraging and rewarding answers that would suggest guilt, by emphasizing the sexual parts on anatomically correct dolls, and using influence and coercion.

A number of adults were found guilty at the Saskatchewan Court of Queen’s Bench and Court of Appeal level. The Supreme Court of Canada overturned the convictions, and although the Court felt there was enough evidence to re-try the adults, the charges were stayed to prevent the children from facing more court proceedings. Eventually, all three children recanted their allegations.

Malicious Prosecution Lawsuit

Lawsuits against police and prosecutors for malicious prosecution are rarely successful. Prosecutorial independence and discretion are essential for fair and efficient functioning of the judicial system.In 1994, twelve members of the Kvello and Klassen families launched a civil action for malicious prosecution against the investigating police officer, therapist, Crown prosecutors and their supervisors. They sought $10 million in damages. This civil action played out for 15 years until prosecutor Miazga’s fate was decided by a unanimous Supreme Court of Canada.

Following the 1989 case of Nelles v. Ontario, the Court confirmed that four key conditions must be satisfied for a malicious prosecution claim to be successful. The plaintiff must prove the prosecution was:

initiated by the defendant;
terminated in favour of the plaintiff;
undertaken without reasonable and probable cause; and
motivated by malice or a primary purpose other than that of carrying the law into effect.

Only the last two elements were at issue in this case. According to the objective assessment made of existing circumstances, there was reasonable and probable cause to initiate a criminal proceeding. Malice lies in some ‘improper purpose’ by which prosecutors misuse their position for a purpose other than that which is intended for the criminal justice system. Malice was not proven in Miazga’s case.

Lawsuits against police and prosecutors for malicious prosecution are rarely successful. Prosecutorial independence and discretion are essential for fair and efficient functioning of the judicial system. Prosecutors need discretion throughout legal proceedings and they should be immune from review of this discretion unless it was motivated by an improper purpose. Crown independence ensures third parties do not influence judicial affairs. Since the Attorney General is also a political member of government’s cabinet, prosecutors must remain independent. Today, the test for prosecutions in Canada is whether there is “a reasonable likelihood of conviction.”

Criminal prosecutions impose a significant cost on accused who are not guilty. They may be subject to public scorn, humiliation and loss of reputation, and suffer from depression, anxiety and mental anguish. They may lose their jobs and future employment opportunities. They may need medical treatment and counseling. All of these afflictions were borne by the Klassens and their children. As late as 2007, Kayla Klassen said, “My whole life I’ve been called Baby Eater and I am still called that name to this day. It’s ruined my life.” Even if reputations are eventually rebuilt, one might never fully recover.

Where are the Parties Now?

During the lengthy legal proceedings, two plaintiffs (Dennis Kvello and Marie Klassen) passed away. Despite losing in court, the Kvellos and Klassens were paid $2.736 million from the Saskatchewan government for pain and suffering and legal costs. They have remained out of the spotlight since the trial, after years of public scrutiny. Richard Klassen co-founded with activist Sheila Steele, the ‘injusticebusters.org’ website, which described the trial from the perspective of the accused. Contributions to that website ended in 2006, after Ms. Steele passed away. In 2009, Mr. Klassen mused about writing a book to encourage others facing similar struggles, but he has yet to do so.

The Ross sisters, as adults, received a $560,000 settlement for the abuse at the hands of their brother. The Ross sisters were previously impoverished. One had been living homeless in downtown Vancouver. The investigating police officer is retired. Matthew Miazga continues as a Crown prosecutor in Saskatchewan.

Aleksandar Gvozdenovic a graduate of the Haskayne School of Business.

Litigating Death in Care Cases in Alberta

January 5, 2016 By Avnish Nanda

Legislation and Cases Commented On: Fatal Accidents Act, RSA 2000, c F-8, Argent v Gray, 2015 ABQB 292, FRN v Alberta, 2014 ABQB 375, SM v Alberta, 2014 ABQB 376

More than 775 children with some involvement with child protective services in Alberta have died since 1999. This past year alone, approximately 31 children have died while in provincial care or while receiving protective services. The vast majority of children dying in care are of Aboriginal heritage, and all come from marginalized backgrounds. Only until recently have the deaths of all children who die in provincial care been investigated. Prior to 2014, provincial fatality inquiries were only held into select deaths, with none of the findings and recommendations binding on the province or care providers.

The number of children dying in care in Alberta is alarming. While there are a multitude of factors involved, the number of deaths caused by accidental or preventable means is disturbing.For the families of children who have died in care, litigating wrongful death claims against the province and care providers offers an opportunity to obtain redress. Unfortunately, very few cases have been filed, let alone litigated, due in large part, in my view, to the marginalized position of families and the opaqueness of this area of law. With respect to the latter, common law causes of action are non-existent, duties of care are not clearly defined and the jurisprudence is sparse.However, a pair of companion decisions released by Justice Robert A. Graesser in 2014, and a notable decision by the Alberta Court of Appeal on punitive damages in the wrongful death context, provides a path forward. These decisions and a more recent one, outlines a potential legal framework that could be used to inform and help formulate death in care claims against the province and care providers whose wrongful conduct led to the death. It is intended to spark a conversation on how lawyers can assist families of children who have died in care obtain financial restitution and push for reform to the child protective services system in Alberta.

The common law provides no basis for families of individuals who have died through wrongful means to recover damages for the loss resulting from the death. Statutory causes of action are instead relied upon to obtain financial restitution, which in Alberta is primarily set out under the Fatal Accidents Act (the Survival of Actions Act RSA 2000, c S-27 provides another statutory cause of action but is not relevant in this particular context. For the Survival of Actions Act to apply, claimants have to demonstrate that the deceased or their estate suffered actual financial loss as result of the death, which is unlikely here, as the deceased are children).

Damages could be awarded to the parents of children in care for the violation of their <em>Charter</em> rights as a result of the death.The Fatal Accidents Act provides the family of the deceased a statutory cause of action for non-pecuniary damages against those whose wrongful act, neglect or default caused the death of the deceased. Pursuant to section 8(2)(b), the parents of children who have died in care, and potentially the children of the children who have died in care, are entitled to damages for bereavement (defined more specifically as damages for grief and loss of the guidance, care and companionship of the deceased person). See Non-Fatal Exclusion: The Fatal Accidents Act, Stepchildren, and Equality Rights for an overview of the history and context of the Fatal Accidents Act. Any sort of negligence (including systemic negligence, which has been pled in this context), breach of fiduciary duty or other cause of action that resulted in a child in care’s death could be subsumed under the Fatal Accidents Act. Damages may be awarded without reference to any other damage awards granted and without evidence of damage. The parent or parents of the deceased child are entitled to a statutory maximum of $82,000 in damages, to be divided equally if the action is brought for the benefit of both parents.

In FRN v Alberta and SM v Alberta, Justice Graesser considers two applications brought by the Crown to strike claims filed by families of children who have died in provincial care. In considering the applications, which are partially successful, Justice Graesser provides a template for wrongful death claims in this context. Justice Graesser thoroughly examines the pleadings for causes of action against the Crown and care providers, which in both cases are individual foster parents and not corporate care providers. While it is necessary to read both companion decisions in their entirety, for the sake of brevity, Justice Graesser examines the various causes of action brought against the defendants and narrows them to two that could be meritorious.

…a pair of companion decisions released by Justice Robert A. Graesser in 2014, and a notable decision by the Alberta Court of Appeal on punitive damages in the wrongful death context, provides a path forward. In addition to damages under the Fatal Accidents Act, families may also be entitled to damages under section 24(1) of the Charter of Rights and Freedoms according to Justice Graesser (FRN v Alberta at paras 50 -55 and 75-88, SM v Alberta at paras 87 – 104, 129). Damages could be awarded to the parents of children in care for the violation of their Charter rights as a result of the death. Justice Graesser identifies potential section 7 Charter rights that could be breached in such instances, including: (1) the right to nurture one’s child, to care for its development and to make decisions for it in fundamental matters, but not limited to medical care and moral upbringing; and (2) the right to physical and psychological integrity (FRN v Alberta at para 87 and SM v Alberta at para 100). It is important to recognize that the enumerated section 7 rights relate to the rights of the parents and not of the children themselves, as the Charter cannot generally be asserted after death. Justice Graesser also sets out potential principles of fundamental justice that claimants could rely on to make out their section 7 Charter claims, the most relevant being:

(1) that to have a right, you must have a remedy when your right is violated

(2) if a child is being provided with care under the Act, the child should be provided with a level of care that is adequate to meet the needs of the child; and

(3) there should be no unreasonable delay in making or implementing a decision affecting a child (SM v Alberta at para 101).

While it is not certain whether Charter arguments can be successfully made in each case, Justice Graesser makes clear that the apprehension, custody and death of a child in care could lead to such section 7 violations and corresponding damage awards under section 24(1).

In the event that the children of a child who has died in care bring a claim under the Fatal Accidents Act, the statutory award they would be entitled to is $49,000 for each child. The award is not split between the children, as it is for parents of deceased children under the Act, but represents their individual entitlement. Moreover, as indicated in Argent v Gray, 2015 ABQB 292, pursuant to section 5.1(2) of the Limitations Act, RSA 2000, c L-12 the two-year limitation period for the children would be suspended until they reached the age of majority, recommencing afterwards. While this scenario may be rare, there is a distinct possibility that this could occur, and given the quantum of damages and limitations issues described above, filing on behalf of the children may provide a strategic advantage to the family of the deceased over filing on behalf of the parents.

The vast majority of children dying in care are of Aboriginal heritage, and all come frommarginalized backgrounds.Until recently, it was generally thought that claimants were limited to non-pecuniary damages under the Fatal Accidents Act and not entitled to punitive damages. This understanding changed with Steinkrauss v Afridi, 2013 ABCA 417 (clarified in Steinkrauss v Afridi, 2014 ABCA 14 – See Punitive Damanges Now Possible in Alberta Fatal Accidents Actions for further discussion of punitive damages and the Fatal Accidents Act) For the first time, the court acknowledged that punitive damages could be awarded under the Fatal Accidents Act, and that such awards would be granted in addition to the $82,000 maximum set out for bereavement damages in the legislation. Provided that it can established that conduct related to the wrongful act, negligence or default that led to the death was so egregious that it must be punished, denounced or deterred, claimants are now entitled to punitive damages in Alberta. From my experience litigating such cases, punitive damages are a real possibility given the often tragic and preventable manner in which many children in care die.

The number of children dying in care in Alberta is alarming. While there are a multitude of factors involved, the number of deaths caused by accidental or preventable means is disturbing. For both the families, and social justice activists interested in pursuing policy reform through the law, the civil justice system can provide a method to force the province and care providers to ensure there are adequate safeguards and protections for children in their care.

This article was first published in ABlawg and is reprinted with the permission of the author.

Privacy Considerations for Families Involved with Child and Family Services

January 5, 2016 By Riley Gallant

Parents involved with Child and Family Services (“the Director”) may not want extended family members, friends, and the general public to know. The Child, Youth, and Family Enhancement Act (“CYFEA”) is the legislation under which intervention services are provided by the Director in Alberta. CYFEA contains provisions outlining how and when information that a child is involved with the Director may be made public.

CYFEA allows publication of identifying information of a deceased child who had current or previous involvement with the Director.Section 126.2 of CYFEA bans the publication of the name or photograph of a child or the child’s parent (“the child’s identifying information”) in a manner that reveals that the child has had involvement with the Director. However, CYFEA also allows for the child’s identifying information to be made public in certain circumstances:

the Director may publish or consent to the publication of the child’s identifying information or any other information related to the child if the Director believes it is in the best interest of the child or necessary for the proper administration of justice;
a child who is 16 years of age or older is allowed to publish or consent to the publication of the child’s name or photograph in a manner that reveals that he or she has had involvement with the Director; and
the court may grant permission to publish the child’s identifying information on application by a child, a parent or guardian, or any other interested party if the court is satisfied that publication is in the child’s best interest or in the public interest.

…the publication ban specifically names the deceased child and the family members whose name and photograph may not be published so service of the order on the media may actually alert the media to the story. This provision of CYFEA applies to news media. It also applies in circumstances where family members, foster parents or other individuals involved with the child publish the child’s identifying information online in a way that identifies that the child is involved with the Director. Individuals are permitted to make reference to or post photographs of a child or the child’s parent online so long as those comments or photographs do not identify that the child is receiving intervention services. For example, a grandparent posting the name and photograph of a grandchild on a public Facebook page or online forum would be permitted to do so as long as the posting does not disclose that the child is involved with the Director. If the photograph is accompanied with a comment indicating that the child was apprehended and placed in foster care, the grandparent would be in contravention of CYFEA. CYFEA states that if any person publishes the child’s identifying information in a manner that reveals that the child is or has been involved with the Director without the legal authority to make that information public, that person is guilty of an offence. They may be fined and, if the fine is not paid, imprisoned for a term of not more than six months.

CYFEA states that the ban on publication does not apply in respect of a deceased child. In July 2014 changes were made to CYFEA with respect to the publication of information identifying a deceased child who was receiving or had received intervention services from the Director. This amendment to CYFEA coincided and likely resulted from newspaper reports that the Director was not being forthcoming about deaths of children in care in Alberta. This change to CYFEA provides more transparency to the public about children who have died in the care of the Director and allows families to speak out publicly after a death occurs if the family wishes to do so. Deaths are now automatically disclosed on the Alberta Human Services website shortly after they occur.

To apply for the publication ban, the family member is required to file a court application.CYFEA allows publication of identifying information of a deceased child who had current or previous involvement with the Director. This includes services provided to a family voluntarily through a Family Enhancement Agreement where the child resided in the care of a parent or guardian at the time of death. Publication is also permitted regardless of the cause of death. Identifying information may therefore be published even if the child is no longer receiving intervention services and dies of natural causes while in the care of a parent. Section 126.3 of CYFEA provides that a family member of the deceased child who does not want the media to be able to publish the child’s identifying information in a way that discloses that the child was receiving intervention services can apply for a publication ban. A publication ban may be ordered by the court to prohibit the publication of names and photographs, but the ban does not stop the media from publishing a story disclosing other non-identifying details surrounding the child’s death, such as the age of the child, the date the death occurred, and the type of involvement the child had with the Director.

CYFEA states that the ban on publication does not apply in respect of a deceased child. The family members permitted to make an application for a publication ban under CYFEA include a parent, guardian, grandparent, or sibling of the deceased child, or someone who stands in the place of a parent within the meaning of section 48 of the Family Law Act. The Director may also make the application and CYFEA allows any other person to make the application with permission from the court. To apply for the publication ban, the family member is required to file a court application. The judge may grant an order banning publication of the name and/or photograph of the deceased child, the child’s parent or guardian, or any other person in a way that reveals that the child received intervention services. If an order banning publication of this information is granted, the order must be served on the parents of the deceased child, the guardians of the deceased child, all other individuals identified in the order, and the Director. To alert the media that a publication ban is in effect, the publication ban must also be served on all members of the media. This can be complicated and difficult to achieve as there are many diverse forms of media outlets in Alberta. Additionally, the publication ban specifically names the deceased child and the family members whose name and photograph may not be published so service of the order on the media may actually alert the media to the story, which is contrary to what the family is hoping to achieve.

Section 126.2 of CYFEA bans the publication of the name or photograph of a child or the child’s parent (“the child’s identifying information”) in a manner that reveals that the child has had involvement with the Director.CYFEA does not provide any timelines for applying for a publication ban. The family is entitled to apply at any time after the death of a child. The media is free to publish any identifying information until such time as a publication ban is obtained, so it is prudent for a family member desiring a publication ban to apply at the earliest opportunity. Child and Family Services caseworkers are aware of this issue. They will typically notify the family that the Director is obligated to disclose the information to the public and alert the family to the option of applying for a publication ban. This, therefore, requires that the grieving family member determine whether they wish to file a court application immediately after learning of the death of the child.The amendment to CYFEA allowing publication of a deceased child’s identifying information may benefit the public interest and the interest of those family members who wish to speak publicly about the death of a child. However, it forces those family members who may prefer privacy to consult a lawyer and proceed to court while still processing the profoundly sad loss of a child. This demonstrates the difficult balance between transparency and privacy that must be struck when trying to address diverse and complex interests.

Aboriginal Children and Child Welfare Policies

July 7, 2014 By Stephanie Jansen

Although nearly everyone has heard the term, “Residential Schools,” it would appear that few really have a proper comprehension of the cruel realities and shame of Canada’s collective history. With its origins in “civilizing the ‘petits sauvages’” [1] for the purpose of serving as wives and mothers to British Colonists, to the later modification of trying to contain “the problem of indigenous populations,” [1] our First Nations people have been put through the wringer, and the legacy lingers on.

The mandate of the Residential School system was, “Remove. Isolate. Assimilate.” [2] Under an umbrella of “coercive recruitment,” [3] and a government motto of “kill the Indian in the child,” [3] First Nations children between the ages of six and sixteen were taken from their homes to live in religious boarding schools. A recent and provocative argument has suggested that the Child Welfare System has become the modernized version of the Residential School System. The government scheme was aggressive and imbalanced, and generally speaking, its plan was achieved.

Whereas the phrase “coercive recruitment” might have left room for interpretation, “apprehension of children” does not. Once the Residential School system was allegedly abolished in Canada, “Child welfare authorities faced growing caseloads of indigenous youngsters.” [3] A recent and provocative argument has suggested that the child welfare system has become the modernized version of the Residential School System. It has also been proposed that the child welfare system sought to replace the Residential School system as the preferred method of care for First Nations children because of the idea that these children were neglected by their families and were better off in state care. [4]

A fundamental difference was that by now, First Nations families were in a state of disconnect due to Residential Schools, and this meant that many parents lacked the necessary skills to raise their children. [4] The racism that underpinned the Residential School system had not been abolished alongside the schools themselves. Instead, many First Nations children ended up back in the state institutions they were supposed to be freed from. [4]

Child welfare services to First Nations people have created conflict between the federal and provincial governments. The Constitution Act, section 91(24) gave exclusive authority to the federal government to overlook “Indians and lands reserved for Indians.” The racism that underpinned the Residential School system had not been abolished alongside the schools themselves. Instead, many First Nations children ended up back in the state institutions they were supposed to be freed from. [4] The federal government later enacted the Indian Act to regulate the administration of treaty and status Indians. [5] Although the Indian Act remained silent on issues of child welfare, it was amended in 1951 to provide for the general application of provincial laws to Indian people insofar as they were inconsistent with the Indian Act itself or any treaties between Indians and the Crown. [6] As of 1951, the provision of provincial child welfare was extended to include First Nations people living on reserves. The outcome saw the provinces receiving the power to infiltrate jurisdiction that had normally been held by the federal government. [6] It was an overt discharge of responsibility.

When the Alberta child welfare system is examined in the context of the services it provides to First Nations families, it is difficult to see beyond the number of apprehensions that occur. In fact, it has been suggested that a new scoop of First Nations children is occurring in the form of child seizures. [7] When I worked in Child Welfare Docket Court in Edmonton, it did not go unnoticed that most of the apprehended children and their parents were First Nations. Only nine per cent of Alberta children are aboriginal, yet they account for a staggering 78 per cent of children who have died in foster care since 1999. [8] These numbers demonstrate that the claim of a new scoop is rooted in something solid. Furthermore, it has been argued that the child welfare system is more damaging than the Residential School system due to the fact that children who are apprehended and placed in care spend even more time in isolation from other First Nations children, which results in a greater sense of vulnerability and cultural harm. [9]

There are echoes of, “Remove – Isolate – Assimilate” in the Alberta child welfare policies that should raise alarm. More troublesome is that these guidelines are open to interpretation, but the predominant interpretive method is one narrow lens: the Canadian colonial perspective. Nuance, cultural understanding, and acceptance of cultural differences does not factor into these decisions. Because of this, First Nations children are reported disproportionately to other children, and apprehended more often. When I worked in Child Welfare Docket Court in Edmonton, it did not go unnoticed that most of the apprehended children and their parents were First Nations. It baffled me: who was doing the reporting? Why the obvious disproportionality? Worse, why are so many parents appearing at court, confused and without any sort of official support, other than a First Nations Social Worker? What appeared missing was any sort of explanation from the province as to why the children were taken, and how the parents could get them back. That knowledge gap was a direct colonial tactic and a very successful one. The philosophy is similar to that of the Residential School mandate: keep impressionable First Nations children away from their families in order to protect them. Nothing promotes the loss of cultural identity more than separation. Apprehending First Nations children and placing them in predominantly white, Christian homes, seems to perpetuate the mandate of the Residential Schools.

The test used by the courts when considering child apprehensions and placements is the “best interest of the child”. [10] This test often leads to a specific result: namely, that First Nations children are placed in non-Aboriginal homes. These numbers demonstrate that the claim of a new scoop is rooted in something solid. The focus on a good substitute home, a stable two-parent family, access to good health and educational facilities all but rules out many First Nations families from any chance of qualifying as placement homes for First Nations children. [11] For instance, many families do not have two parents, and reserves often have inadequate funding structures, which result in substandard infrastructure. [12] It is also unlikely that adequate housing, and access to a hospital and school are a reality for most First Nations families on reserves.

This also affirms that those kept in poverty situations make good targets for child apprehensions by the very government that put them in the poor situation in the first place. The “best interest of the child” legal standard all but guarantees the removal of First Nations children from their traditional homes into Canadian Christian homes. The outcome is a stripped identity, a reinforcement of systemic racist practices and continues to exacerbate an already damaged relationship. Until we ask genuinely, “What can we do to fix what we have created?” our chances for reconciliation remain a distant dream.

Notes: 1. Veronica Strong-Boag, “Fostering Nation? Canada Confronts Its History of Childhood Disadvantages” (Toronto: Wilfrid Laurier Press, 2011).

2. Erin Hanson, “The Residential School System”, Indigenous Foundations, University of British Columbia.

3. J. Milloy, “A National Crime: The Canadian Government and the Residential School System 1879 – 1986,” (Winnipeg: University of Manitoba Press, 1999).

4. Marilyn Bennett, Cindy Blackstock & Richard De La Ronde, “A Literature Review and Annotated Bibliography on Aspects of Aboriginal Child Welfare in Canada,” First Nations Caring Society of Canada, 2005.

5. Andrew Norman Gull, “The Indian Policy of the Anglican Church of Canada from 1945 to the 1970’s,” (Peterborough: Trent University Press, 1992.

6. Erin Hanson, “The Indian Act: 1951 amendments” Indigenous Foundations, University of British Columbia.

7. Cindy Blackstock, “Why if Canada wins, Canadians lose: The Canadian Human Rights Tribunal on First Nations Child Welfare. Children and Youth Services Review, 33, 187-194, at 188.

8. Darcy Henton, “Death of Aboriginal Children in Foster Care is No Fluke of Statistics,” The Edmonton Journal, January 28, 2014.

9. A. Armitage, “Family and Child Welfare in the First Nations Communities,” Rethinking Child Welfare in Canada, ed. B. Wharf, (Toronto: Oxford University Press, 1993).

10.United Nations Human Rights, “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration,” Convention on the Rights of the Child, Article 3.1.

11. Samuel Bull, “The Special Case of the Native Child,” The Advocate, 1989, 523-531 12. See for example: “First Nations housing in dire need of overhaul”, CBC News, Nov. 28, 2011, but one of many articles showing substandard care by government agencies on reserves.

12. See for example: “First Nations housing in dire need of overhaul”, CBC News, Nov. 28, 2011, but one of many articles showing substandard care by government agencies on reserves.