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The Family Court System in Nova Scotia: How art thou broken? Let me count the ways . . .
As Canadians and Nova Scotians, we, very dangerously, make assumptions about our court system that, unfortunately, are not true. “This is Canada,” we tell ourselves. “We are not a third world country”. “In Canada truth and justice reign!”
But on what experiences - real actual experiences - are you basing this judgment? Have you ever been inside a family court? Have you ever witnessed an apprehension case? Have you ever asked yourself why you should - or should not - believe this evaluation you have formed in your mind concerning our court system?
Have you ever really listened to the opinion of anyone critical of the justice system? Have you ever really listened to the critical voice? Do you think the media allows that voice to be heard clearly or correctly? Have you ever sought to hear that voice directly? Being on this website is a beginning - but I challenge you to go into the courtrooms of Nova Scotia to observe, yourself - not as pampered scheduled observers on tour but as spontaneous observers. And, when something doesn’t seem right, research the law and educate others about your observations.
As advocates who have experienced and observed the family court system in Nova Scotia for many years, we have no Barrett Browning enumerations of love for the family court system as practiced here in our province. From our accumulation of experiential knowledge, we have lost our “childhood faith” in this system as we continue to “strive for Right” and we are horrified when we observe the stakeholders in this system “turn [to] Praise” each other in their various meetings, forums, seminar and committees while the gutting knife - the knife that brings death to our families - is fresh in their hands!
Our court system is broken - let us count the ways:
ONE: First of all, by this date, we should have Supreme Court Family Division, not the Provincial Family Court system functioning throughout the entire province. Instead Supreme Court Family Division is limited to the Halifax and Cape Breton regions.
And why do you suppose the progression of this system has been stymied? The Provincial Family Court is overseen by provincially appointed judges and is a closed court system where even supportive family and friends are barred from entering the courtroom, while the Supreme Court Family Division is overseen by federally appointed justices and the courtrooms are open to observers - even the courtrooms dealing with child apprehension cases.
Could it be that the province wants to maintain control and that they do not want you to know what is going on inside the courtrooms?
TWO: When we, as advocates, approached, Sarah Osbourne, the Supervisor of Court Administration at the Devonshire courthouse in Halifax to ask about our ability to sit in on child apprehension cases, she incorrectly told use that we could not do so. She knew the correct answer but deliberately put us off.
However, after doing our homework, we realized that we could do so, and the first day we attended an apprehension case, Sarah Osbourne was waiting just outside the courtroom door so that when we filed out during a break she was standing there, arms folded, scowling at us as we walked past her. She said nothing to us - she couldn’t, we were within our right and she knew it.
Since then we have been harassed and followed, as if we were criminals - none of us have criminal records - every time we enter the courthouse.
We are concerned that people who are asking questions about their rights are being given deliberate misinformation at the courthouse.
THREE: At one point, someone was requesting access to court documents that were not connected to an apprehension case (the public does NOT have access to apprehension court records, which is a shame because there is a lot of evidence against the system in those files BUT they DO have the right to access non-Children's Aid/ Children's Services/ Agency files) . Once again Sarah Osbourne gave misinformation concerning access to these files, repeatedly stating that because the person requesting the files was not a party to the proceedings, access to the files was not permitted.
When the request was finally put in writing, requesting the reply in print, Sarah Osbourne made the mistake of repeating her original misinformation on recorded voice mail. When the request was again put in writing, with important cc’s, now insisting that Ms Osbourne give answer in writing, suddenly, after many months delay, a polite written reply was sent assuring access to the originally requested documents.
Again, we are concerned that deliberate misinformation is being given to the public by staff who know better.
FOUR: We are concerned about ALL the family lawyers that practice in Nova Scotia. In all our years as advocates, we have never found one single family lawyer we would recommend. It matters not if they are free legal aid lawyers or are paid big hourly wages. The service and protection you get from these lawyers all adds up to the same thing - noTHING!
There are many lawyers out there who will NOT take apprehension cases for any amount of money. We used to think ill of these lawyers, but we have now come to understand that they are the honest lawyers - they know the system is such that they cannot represent their clients as they should and they refuse to be part of it.
On the other hand, there are certain family court lawyers who take any and all cases, habitually overbooking their clients - they literally run from one courtroom to another trying to keep up with their cases. We have witnessed these lawyers begging justices to allow them to leave the courtroom while their present case is in session so they can run off to a scheduled case in another courtroom! You cannot expect such lawyers to even begin to have the time to represent you properly.
FIVE: NEVER - NEVER - NEVER -NEVER - NEVER agree to any charges placed against you if they are not true!
We are appalled - many parents are being instructed by THEIR OWN lawyers to accept at least one of the charges placed against them - the most popular choice, directed by the lawyers is “the risk of emotional harm”. We think this is the one suggested because it is the one most people can be conned into believing would be less damaging - This is not correct!
Though this charge is not stating that you have ever actually neglected, harmed or abused any child - only that there is a possible “risk of” in the future, this is all they need, in the province of Nova Scotia, to permanently take your child!
We also believe that this is the one suggested to be chosen because it is less likely, that once accepted by the parents, the Court will believe a parent who later attempts to renege on this acceptance.
And here's the clincher ! The sytem will make sure the parents will be sent off to shoddy, made-to-order assessmants that will make the parents appear capable of fullfilling the "risk off " that they accepted.
So, from the very beginning, the parents are being set up. Their own lawyers, open up the noose and tighten it snug against the parent's necks !
And we advocates understand, first hand, the termendous pressure that is placed on parents to accept one of these charges. Recently 2 parents with 4 university educated advocates were pressed by 2 lawyers to chose 1 of the 4 charges placed against them. With 4 advocates in the room defending the parents, the press was shockingly blatant and persistent! If we had not been there the parents would not have stood a chance -against their own lawyers!
One of the advocates clearly stated to the lawyers, “You have just stated that Children Services needs only to prove one charge to permanently take the children away, so why would you be counseling the parents to accept one of the charges? By doing so, you have made their case for them!”
If your lawyer, presses you to accept any of the charges against you, which you know is untrue, then this should be your first and most important wake-up call!
SIX: We are appalled that parents who are together fighting to get their children back are being forced to accept 2 separate lawyers. This is all part of the popular Divide and Conquer stategy that is utilized by the system.
Recently 2 parents were told by Nova Scotia Legal Aid that if they did not accept 2 separate legal aid lawyers, they would be forced to sign papers rescinding their right to separate lawyers in the future.
What made this more shocking was that neither one of the lawyers allowed the other parent to be present during client-lawyer meetings, despite the fact the parents were married, living together and working together to get their children back!
This refusal to allow the other parent present was recently witnessed by an elected provincial MLA.
SEVEN: Recently, Nova Scotia legal aid attempted to refuse support and/or advocates to be present with persons while meeting with their lawyer - This is a basic right that should never be denied any person. Do not accept this ploy. Be firm and insist on this right.
EIGHT: After being instructed by the parents to fight the charges placed against them, we have heard lawyers tell their clients, “But this is Children Services - Nobody wins against them”
Well to this we say, "Nobody wins when nobody fights" - And this clearly reveals what these lawyers have been doing - nothing!
NINE: The Children and Family Services Act states that children 12 and older have the right to their own lawyers. With their own lawyer, children would be added to the case as official parties to the proceedings and would then have access to all documents filed in the case, would also be able to file their own documents and affidavits in the case, and would be present in court as a full party. This would give them an important voice in the matter before the court.
However, I am sorry to report that in all our years as advocates, we have never seen any child who has managed to have their own independent lawyer. Instead, through various lies and manipulation - this voice is stifled - by the very system that is suppose to be watching out for their best interest.
In June of 2005, members of the Senate Committee on Children’s Rights, not realizing that children of any age are being denied their right to independent lawyers in Nova Scotia, shared their opinion that children as young as 8 were mature enough to have their own lawyers.
For a number of years, we have been in contact with a youth, now 16 year old, and her mother, who have been in the news over the past year. The Minister of Community Services, Judy Streatch, as the self proclaimed “parent” of all the children in the system, was summoned to appear in court concerning this child but the Minister pushed back refusing to appear. Talk about parental neglect!
We were in court when this girl was 12 years old and the mother first asked for an independent lawyer for this child. This request was denied on the sole argument that, in general, children of this age were not sufficiently mature enough to view the documents filed in an apprehension case. This personal opinion was presented by the Minister’s lawyer, James Leiper and was immediately rubber stamped by the justice. This opinion is contrary to the Children and Family Services Act, itself, because Section 37 (2) of the CFS Act recognizes children 12 and older to be mature enough to be a full party to the proceedings.
Two years later. the mother, made several more attempts to get a lawyer for this child, but her efforts were stymied by repeated misinformation and interference by Nova Scotia legal Aid.
Should we be surprised that both the mother and child, who have been frustrated by individuals in the system for years, should finally lash out? Eventually the child began acting out in her group home with her neglectful “parent”, the Minister placing criminal charges against her.
How ironic that now that her “parent”, the Minister of Community Services, Judy Streatch, has criminalized this child, she is finally allowed to get a CRIMINAL lawyer - She has still not succeeded in getting a FAMILY lawyer.
But there is still a catch here. Even if the children do get independent lawyers as specified in the Act, these family lawyers are not fulfilling their obligation to defend the adult parents, so why would we expect them to defend our children properly!
See more of this story in article One Ongoing Futile Attempt to Obtain an Independent Lawyer for a Child Over 12 Years Old as Mandated by the Nova Scotia Children And Family Services Act (posted below). This was one of the documents we presented to the Human Rights Senate committee in Ottawa.
Another mother approached a number of non-legal aid lawyer to represent her daughter who was over 12 and apprehended. The lawyers she approached informed her that they did not even know a mechanism by which they could represent a child in “care”.
TEN: When children do not have an independent lawyer - and they never do - a Guardian Ad Litem is appointed to bring forth their concerns and wishes in the court proceedings.
However there is no mechanism for a child to verify that their concerns and wishes have indeed been brought forth. In fact, it seems, everything is done to keep the child in the dark. Either they are never informed about their right to go to the court proceedings (as well as having their own lawyer) or they are discouraged from attending. In fact, some children have expressed fear that negative consequences will result if they attempted to come to court.
These children are also instructed, as are their parents, that they cannot discuss the court proceedings on parental access visits. However, we know from parents who did discuss the proceedings with their children, that children are being mislead by the guardian ad litems and that the information the children believed was being brought to court was NOT.
One such case very quickly turned around, with the child being returned to her mother, after the mother, at the request of her daughter, filed a hand written note from the daughter raising the concerns she had previously believed were being brought to the court by the guardian ad litem.
These guardian ad litems are not independent. They work under contracts with the government, and before case conferences and meeting with parents, they are part of the inner pre-meetings so that when the case conference or meeting is finally convened they are working in unison with the Minister’s department.
ELEVEN: We know parents whose lawyers never filed ANY affidavits or supportive documents on behalf of their clients. They simply sold their clients - and their children - down the river.
TWELVE: We know parents who were pressed by THEIR OWN lawyers to sign their children into permanent custody, after the lawyer did absolutely nothing to assist them. They are promised that if they do so they will be able to see their children for 9 more months (which would be their right anyway if the children were taken) but they are also threatened by THEIR OWN lawyer that if they do not sign their children away that the Court will immediately order the children into permanent and that they will immediately loose all contact with their children.
Many panicked parents are intimidated by this threat. Fearful of immediately losing contact with their children, they grasp at this “promise” only to find out that their visits are then drastically cut back, with some parents finding their child quickly adopted out, without notice, before this time period is finished.
THIRTEEN: We saw one mother lose her child when her well paid lawyer did nothing to defend her against the assessment used against her. This lawyer had a reputation as a bulldog but we saw nothing but a quiet spineless wimp when he represented this mother. The extent of this lawyers defense was a one page letter written by another psychologist! He did not even call this psychologist as a witness.
FOURTEEN: We have very grave concerns about the assessments that are done on parents and family members. Some of these assessments have been reviewed by reputable PHD psychologists and these psychologists have been shocked by the way the interviews and tests for these assessments have been given, reported and interpreted - In fact, in the assessments reviewed, they found nothing acceptable in them at all.
The lawyers for the parents are doing nothing for them in regards to these assessments, sending them off like lambs to the slaughter, knowing full well the kind of results their clients are likely to get, and though there are a number of legal resources at their disposal to argue these assessments - they do absolutely nothing!
FIFTEEN: We are concerned about the way case conferences before the justices are being held. First of all they are being held in closed courtrooms at the Supreme Court - Family Division. Because of this we know of a mother who was forced to go into this conference completely by herself even though she had requested support persons to be there with her. In addition, these conferences are NOT being recorded as are regular court appearances. Because of this, parents are finding that there is no record of promises made by Children's Aid/Services/the Agency. As a result, promises are not kept and parents have resolved that they will NEVER submit themselves to a case conference before the justices again!
SIXTEEN . . . . . SEVENTEEN . . . . . EIGHTEEN . . . . . .
One Ongoing Futile Attempt to Obtain an Independent Lawyer for a Child Over 12 Years Old as Mandated by the Nova Scotia Children And Family Services Act
(document presented to the Senate Committee on Human Rights in Ottawa - October, 2006)
My name is Linda Youngson. In June 2005, with another fellow advocate, Marilyn Dey, we filed a mandamus application in the court of Nova Scotia against the Nova Scotia Minister of Community Services, David Morse, to force him to obey Section 88 of the Children and Family Services Act 1990 whereby the Minister was to appoint a committee to review the Act and its implementation on an annual basis. Two of these committee members were to be parents who had had their children apprehended by the Minister, or in fear of having their children apprehended. Since the implementation of this Act, in 1990, there had only been 2 such committees doing the job specified: in 1993 and 1996.(document presented to the Senate Committee on Human Rights in Ottawa - October, 2006)
In December of 2005, our application went to trial with the provincial government’s argument being that “the Crown only owed its duty to the Crown” and that individual citizens like Marilyn Dey and I did not have the right to bring this action to Court to force the government to obey its own laws!
I am part of an association of people who have had their family members apprehended by this notorious system. Though I am active in many aspects of advocacy work concerning our many serious concerns, including speaking to, encouraging and directing currently victimized families, and appearing as a witness to the court proceedings, as well as accompanying individuals as a support person, my forte is research and writing. My academic credentials include B.A. (highest aggregate), B.Ed., and M.Ed.( Psychology with a focus on Human Relations with a 4.00 GPA).
From our years of advocacy work and research, we have come to know that there is serious systemic corruption that runs through a number of provincial government departments. These departments include the Department of Community Services, The Health Department, the Justice Department, the Education Department, and the Finance Department.
The following is just one example, amongst many. Though there are many grave issues that are apparent in this case, the persistent concern that has followed this family is their inability to get independent legal representation for the child who was apprehended by this province at the tender age of seven and has been in the system for 9 years now.
Section 37 of the Children and Family Services Act states that "a child who is 12 years of age or more shall receive notice of a proceeding and, upon request by the child at any stage of the proceeding, the court may order that the child be made a party to the proceeding and be represented by counsel, where the court determines that such status and representation is desirable to protect the child’s interest.”
Section 41 (4) of the Children and Family Services Act states that “Where a parent or guardian consents to a disposition order being made pursuant to Section 42 that would remove the child from the parent or guardian’s care and custody, the court SHALL:(a) ask whether the agency has offered the parent or guardian services that would enable the child to remain with the parent or guardian(b) ask whether the parent or guardian has been consulted and, where the child is 12 years of age or more, whether the child has consulted independent legal counsel in connection with the consent; and(c) “satisfy itself that the parent or guardian understands and, where the child is 12 years of age or older, that the child understands the nature and consequences of the consent and consents to the order being sought and every consent is voluntary.”
Despite this law, the mother has been struggling to get a lawyer for her, now, 16 year old daughter for 4 years. I and another advocate, Marilyn Dey, sat as witnesses in the courtroom 4 years ago, when the daughter was 12 years old, as this mother requested a lawyer for her daughter. Despite the law declaring a 12 year old to be mature enough to be a party to the proceedings, the Children’s Aid lawyer argued that he did not believe a child of this age should have her own lawyer because he felt that access to certain documentation would be upsetting to a child of this age.
It is important to note that this was a general observation linked to the lawyer’s personal understanding of the abilities of a twelve years old. The lawyer did not make any specific observations about the abilities of this particular child. On this statement alone - the justice disallowed the child her right to have her own lawyer.
We were appalled! Since when should the personal opinion of a lawyer come before the law! The law had declared 12 year olds to be capable - what gave the lawyer, and the justice, the justification to flippantly wave away this legal right?
It should be noted here that when senators representing the Federal Senate Committee on Human Rights came to Halifax in June of 2005, they raised the issue that they believed that 8 year olds were capable of having their own lawyers and were inquiring why the age had been set at 12.
While this mother struggled through the courts attempting to rescue her daughter from this system, she was denied access to her daughter. However, approximately 4 years ago, when her daughter was twelve, the Halifax Children’s Aid Society allowed the daughter to write letters to her mother. Upon receiving these letters, the mother immediately replied, but it was not until 2 years later, when the mother finally saw her child, that she discovered that none of these letters were given to her daughter.
This poor child had finally been allowed to write her mother, but because she was never allowed to receive any of her mother’s letter’s, she was left wondering why her mother had not answered. One could only imagine the rejection this child was made to feel through this ordeal. The Halifax Children’s Aid Society cannot possibly defend this action as being in “the best interest of the child”? Indeed, to do such a thing is mental cruelty!
When the daughter, was 14 years old she located and contacted her mother. When they met, the daughter stated that she wanted her own lawyer and it has been a roller coaster ride ever since. First, this mother and daughter were directed to provincial legal aid. It is important to note that there is grave concerns with legal aid because both legal aid and Halifax Children’s Aid is overseen by the provincial government - Many see trying to get a legal aid lawyer to battled Children’s Aid/Service or the provincial government Agency as nothing more than a conflict of interest! When the mother attempted to make arrangements to see a legal aid lawyer, she was then informed by the provincial legal aid officials that she could not assist her daughter in finding a lawyer, that the child would have to do this herself. Finding a lawyer can be an daunting experience for adults. To expect a 12 year old child to do so by herself is not realistic.
Then, after being told that the child had to look for her own lawyer, the story suddenly changed - the mother was then informed that the child already had a lawyer, that the guardian ad litem’s lawyer was the child’s lawyer. This is totally incorrect information. The guardian ad litem’s lawyer is there to protect the legal interests of the guardian ad litem NOT the child.
And let me also clarify, the guardian ad litem , a person appointed to represent the child’s wishes in court in their absence, is not the child’s lawyer either. This person is NOT independent from the system, and works very closely with Children’s Aid/Service or the provincial government Agency. From our advocacy work, we are aware of blatant disregard for the children’s requests through their guardian ad litems and that there are no checks and balances in place for the children to determine if their concerns or requests have indeed been brought forward. All to often, the children naively believe the guardian ad litems have done their jobs. Children and parents are told they are not allowed to discuss court concerns during their visitations but in our advocacy work we have determined that when parents have discussed these issues with their older children, that it is not unusual that the parents realize that issues the children believed were being brought before the court were NOT!
Back to the family in question - Finally, the child did contact legal aid on her own and she was informed by the secretary that a particular lawyer had been assigned to her and she was given a card with the lawyer’s name on it. The child made many frustrating phone calls attempting to set up a meeting with this lawyer, but her calls were never returned. Eventually, this lawyer contacted the mother’s lawyer stating she had never received any communication from this child!
After this, the daughter, on her own accord, at the age of 14, left the group home in which she was residing and went to live with her mother. The Children’s Aid Society responded by serving the mother a “Protective Intervention Order” demanding her appearance in court July 5, 2005. Though the police had been contacted, the mother understood that they do not see grounds to intervene.
During this time, the Halifax Children’s Aid was refusing to allow this child to have her personal items including her prescription medication. Please note that Children’s Aid/Services and the government Agency will use such an action against a parent if they are attempting to justify taking a child away from their family.
When the mother and daughter visited the daughter’s doctor, the same doctor who was seeing this child while she was at the group home, the doctor made a direct call to the group home, in front of the mother and daughter requesting her medicine - The doctor was shocked to be told that the medication would not be forth coming .
Frustrated, the mother finally approached an independent lawyer to represent her daughter. This lawyer had already heard a number of disturbing things about the system and he indicated that he was keen on representing this child. But this possibility was shut down when the legal aid office refused to issue a certificate of service for this lawyer.
Over the next two years, the daughter spent time at the group home and with her mother. These were not visitations that were sanctioned by the system but it was apparent that both mother and daughter were determined to have a relationship. Unfortunately, no services were offered to assist with this reunification, services that were desperately needed for a mother who had last been a mother to a seven year old and a daughter who had long ago forgotten how to respond to a mother.
It is important to note that up until the child found her mother, there had been no unusual problems with her in the group home. When the child returned from meeting her mother she reported being deliberately provoked by the staff. This goading resulted in angry outbursts by the child. The first incident was throwing milk in the face of one of the house workers.
As advocates, we have no problem believing this intentional goading by individuals in the system because we have witnessed this ourselves, even during court appearances! In one case, totally unprovoked, a self-representing woman was tackled by the security guard after she had gathered her notes and was walking down the aisle towards the door. There were at least 5 court witnesses that day- one a World War 2 Vet who shouted out to the justice to do something. Instead, the justice just stood there, silently watching the spectacle for a few seconds before she turned on her heels and retired to her chamber.
In response, I quickly followed the guard and this poor woman as they rolled through the doors into a small outer chamber. When I got there, the woman was pinned half on the floor and half on the wall. Then I calmly repeated to the guard 3 times - “I am a witness- I am a witness- I am a witness” In response the woman simply stated twice “She is a witness- She is a witness”. And then, the guard backed off, without a word, and let the woman go home.
One night, a fellow advocate was shocked to get a phone call from this child. This 14 year old had been hauled off to the police station in handcuffs for the aforesaid incident, throwing a glass of milk at the worker! We were appalled . What were they trying to do to this child? Scare her into compliance? She was in tears.
Again, I ask, where is “the best interest” of this child being served? Is criminalizing this child for such action in this child’s best interest?
Over the next 2 years, this group home managed to rack up over 30 charges against this child, including missing curfew, smoking cigarette, damaging the carpet etc, as well as punching a worker in the face.
A few times this child left the group home, spending nights on the street and at times phoning one of our advocates, begging for a place to stay. Unfortunately, this was an act that was deemed too risky because this advocate had a child of her own that she had only recently gotten out of the clutches of this system. We have been informed that one absence from the group home resulted when the child had phoned to inform the staff that she was going to be a bit late making curfew and she was told that the police would be waiting to haul her off when she came in! Under these circumstances, could you blame the child for not going back?
We are aware that this child was eventually sent to “ the province’s secure treatment facility in Truro” that professes to assist troubled children. However, children in the system have reported that being sent to Truro is often used by workers to threaten them.
Now, we are deeply upset to find out that there is talk of sending this child out of province or even out of country. There is also grave concern that this child is now being deemed to be functioning at a grade four level, (she is in grade 10) and that she has all kinds of psychological problems. We do not agree with this assessment. The advocate who has been working with this child over 4 years has always described this child as being bright, well mannered (please, thank-you, your welcome), with a good head on her shoulders. When meeting with this advocate over the Christmas holidays, she was touched when this young lady brought small gifts for her and her daughter, a coffee mug and a small teddy bear.
Understand, the criminal charges against this child starting racking up only after the group home staff started goading this child after she located her mother, and all of these action are specific to the group home and group home workers.
We are also well aware that it is not beyond this system to produce fraudulent assessments. We have had assessment done by this system reviewed by well known and respected PHD psychologists. In court, they have testified vehemently against these assessments with nothing good to say about them at all! Here in Halifax, we arranged to have a PHD psychologist speak publicly on this issue. In this meeting, she candidly confessed there were a grave problem with assessments done for Children’s Aid/Services and the government Agency here in Nova Scotia .
Besides using this assessment to justify sending this child to out-of- province facilities, we have no doubt that Halifax Children’s Aid will now bring this forward to justify not allowing this, now, 16 year old child to have her own lawyer. If you review the history this child has had trying to get her own lawyer, it is not difficult to ascertain that this is the basis of this negative assessment against this child - Not to mention that this would then classify her as special needs giving the system, and the group home, more money for this child.
How ironic that this child had to be criminalized before she was allowed to have her own lawyer - a criminal lawyer- yet she has been persistently denied a family court lawyer for her dealings with Halifax Children‘s Aid!
Please understand, that we have not been able to find one child in the system who has been able to find an independent lawyer. One of our advocates, when her family was being victimized, approached a number of regular, non-legal aid lawyers to represent her child and was informed repeatedly that they did not even know a mechanism by which they could represent a child “in care”.