There isn’t a spare seat in this courthouse waiting room on a Wednesday at noon: Multi-generational families sit huddled together, wearing their winter coats. A woman talks on her cellphone, vowing to record her next interaction with the Children’s Aid Society, to have some kind of proof of suspected misdeeds. A man’s hushed argument with a child protection worker escalates: “I’ll make sure to call you if he loses a shoelace,” he says dismissively before turning away. A child, about 6, bolts from his father and veers through the maze of strangers. Dad catches up eventually.
It is routine activity, but the anxiety is palpable. No wonder: their family’s future is held in the hands of the judge within a courtroom they haven’t even entered yet.
Behind the heavy blond wood doors, parents come under the microscope, their circumstances studied and abilities analyzed in order to determine whether their child is safe in their care or better off in the system.
But the eventual interactions with these judges and lawyers at 47 Sheppard Avenue East in Toronto feel less like a cross-examination and more like a conference with a concerned, yet understanding elder.
The judges try to alleviate the natural tension, to help parents reduce or eliminate risks. Yet they won’t budge if a child’s safety seems imperiled. The law is their guide.
Because family courts are private, the public knows very little about what goes on inside, unless they’re themselves involved. And yet the courts play a critical role in the child protection system — deciding custody matters, assessing risk, recommending resources that may help a family stay intact.
The National Post was given rare access to this court for one day — a day that provides a snapshot of the unique challenges and the powerful impact that good judges can make. The names of the parents who appeared in court that day have been changed in compliance with Child and Family Services Act of Ontario provisions. This is their experience.
Most families who get involved with Children’s Aid never come to court
“Most families who get involved with Children’s Aid never come to court,” says Justice Stanley Sherr, who represented families in child protection matters for 25 years as a lawyer before becoming a judge. Cases only get here when a “protection application” is filed, usually after a family refuses to voluntarily work with the agency, which has concerns that physical, emotional, sexual harm or abandonment of the child has taken place or might. Once there, Children’s Aid Societies have to make a case for why the agency should be involved. Parents need to prove how they’ve made their home safe enough for the child to be returned. Judges make the call.
“The majority of these people are not child abusers,” Justice Sherr says. Most of the time they just need help. Judges here see parents struggling with poverty, addiction issues, mental illness — various things that impact their environment, the way they parent.
The court at 47 Sheppard practices case management — an approach that’s taking hold in urban centres across the province, but isn’t the norm in all family courts in Canada. Specialist judges get to know the families before them and follow cases all the way through.
Sometimes the society’s involvement, at a certain point, can be counterproductive
In a smart, leather-sleeved jacket, her braided hair pulled back, Stella rises when Justice Sherr enters the courtroom. The Children’s Aid Society has reached an impasse with Stella, its lawyer claims, because this mother of three hasn’t allowed the child protection agency contact with her youngest daughter’s daycare.
There are no new concerns, the lawyer says, except for that. Stella’s lawyer says her client hasn’t told the daycare the Children’s Aid Society was involved with the family because she feared “stigmatization.” But a stack of daily reports on the table prove this child is happy and healthy and doing well.
Justice Sherr asks Stella how she’s faring. She beams and thanks him for asking.
“Everything is doing so well, your honour. I start a new job tomorrow.” She is going to go door-to-door trying to convince people to switch energy providers. They joke about how she may one day knock on his door.
“I’m impressed by the improvements you’ve made in your life,” he says. He tells the lawyer to hand the daycare reports over to the CAS lawyer. If they are positive, the CAS will leave Stella alone.
“When that woman first came to court, she was on the ceiling,” Justice Sherr says after the hearing. Back in 2012, her children were apprehended over allegations of physical harm. “There had been broken bones,” Justice Sherr says. The parents blamed each other. Stella was livid. The CAS tried to facilitate temporary custody, but failed. “Then she started the work,” he says, which involved parenting classes and anger management. The court gradually increased her access to a point where the children returned home, one by one.
“I could justify a supervision order, but sometimes the society’s involvement, at a certain point, can be counterproductive,” he says. In this case, the CAS’s attempt to keep tabs on an otherwise healthy, happy child has the potential to backfire. Over-intervention, he says, carries its own risk.
Stella’s progress through court provides “almost a classic example of how case management can work if you can get the client buying in, the judge buying in and then the lawyers buying in,” he says. “She’s to the point now where she has her children back and maybe we’re close to terminating [CAS involvement].” But it took building a relationship to get there — the winning ingredient. Without that relationship, it’s easy for the court to feel adversarial.
“When you come into child protection court, the dominant emotions we face the most are fear – what’s going to happen to me? What’s going to happen to my family? What’s going to happen to my children?” Justice Sherr says. “The other dominant emotion in child protection is humiliation. It’s tremendously humiliating when your children have been taken away from you. How do you face your family? How do you face your community? Am I that bad a person that the Society has to take away my children?”
In case management, the judge involves the parent in a plan. He had a long talk with Stella and convinced her that he wanted her to succeed. While not everything is perfect, by and large, she has. A few hours after her 10-minute hearing, the CAS came back with the stack of daycare reports. They were willing to end their involvement.
Our job and the Society’s job is to help make sure your daughter is OK
Heather does not want her daughter to come home. It’s not safe there. Not since her father came home a few months back and Heather let him in though she swore she’d never do it again.
“He’s a junkie…he hit me, he broke up my house, I don’t want him around me,” she says, claiming he also blew through $52,000. “Right now I’m messed up and I need to get better,” she says, her voice cracking.
The Children’s Aid lawyer tells court that Heather pulled a knife on her daughter’s father and threatened to stab him 28 times.
“All I want is what’s best for my family,” she says through tears. “The rage I have towards him is unbelievable.”
Justice Geraldine Waldman listens carefully and keeps her gaze fixed to this crying woman before her.
“Are you seeing a doctor?” Justice Waldman asks calmly. Yes, she is, but the pills make her feel like a zombie.
“Does the Children’s Aid have an obligation to call the police?” Justice Waldman asks. The lawyer responds that Heather’s daughter is not in danger. “Oh, I would never hurt my children, I love my children,” Heather cries.
“I think for the moment, your access to your daughter needs to be supervised,” Justice Waldman says. This is not what Heather wants to hear.
She pleads, then resigns herself, then pleads again for unsupervised visits with her daughter.
Justice Waldman is firm that there be no overnight visits. “Our job and the Society’s job is to help make sure your daughter is OK,” Justice Waldman says. “We are worried that when your daughter is there, you can frighten her by your emotions and your behaviour.”
Then, with a simple switch in wording, Justice Waldman changes the tone from despair to relief. “Let’s call the visits ‘managed’ and not ‘supervised’,” she says. The air returns to the room.
“Oh, I like that word better. ‘Managed’,” Heather says. She looks calm now and walks out, still flushed from the emotional rollercoaster.
“You can see how multi-dimensional my job is,” Justice Waldman says when the door behind Heather shuts.
“Mental health, intellectual capacity, immigration, parenting conflict, substance abuse, domestic abuse, systemic poverty,” Justice Waldman lists off the social dimensions she routinely sees. “And in how many of these cases do they say ‘Mom was a crown ward?’” The answer is ‘lots.’ The system has not yet found a way to break the pattern, she says. But by trying to identify the core challenges these families face, they can at least try to ensure these parents get the resources they need to help make them into better parents.
No one wants to sever the relationship with your daughter
Arjun and Tanvi have been at loggerheads over their daughter for most of her short life. Now they stand before a judge on a summary judgment motion brought by the Catholic Children’s Aid Society, which argues their little girl, who is 5, is in need of protection. The domestic conflict and risk of violence she may be exposed to in her father’s care is too great, court hears, so they are supporting a bid to give Tanvi sole custody.
She wants another chance to keep her family, but acknowledges “not everything is rosy.” She worries he might try to take the child back to India, where the couple had emigrated from a few years before.
There are emerging concerns about Arjun’s mental health, lawyers for the CCAS argue. He believes there’s a great conspiracy against him, one that involves his workplace, the CCAS workers, the police and society at large.
He had also struck Tanvi during an argument, though most of their fights were verbal. And, though he claims innocence, Arjun pleaded guilty to assault because he believed he had a “responsibility” to do so, he says. The major sticking point, Justice Robert Spence points out, is that Arjun refused a court-ordered mental health assessment. The society raises concern that the girl is at risk of emotional harm.
It’s a tortuous back and forth between Justice Spence and Arjun, who gives roundabout non-answers to his questions.
The eventual decision does not play into Arjun’s favour.
“I find that the child was at risk of emotional harm, the high conflict was exacerbated by the father’s behaviour.
“I will leave the child in the custody of the mother,” Justice Spence says. “It’s the least intrusive action as it takes the CCAS out of the equation.”
Tears are pooling in Arjun’s eyes. “No one wants to sever the relationship with your daughter,” Justice Spence tells Arjun, his voice softer than earlier. “You need to find a way to have a normal relationship with your daughter, and there’s things you can do.” Justice Spence wants Arjun to acknowledge his mental health challenges and seek help.
Arjun represented himself in court — a choice many parents make. Had he accepted duty counsel’s help, he may have been quicker to acknowledge the risks and address them sooner. That’s a huge challenge for a lot of parents, because they are resistant to Children’s Aid intervention.
And in the cases of new immigrants, such as Arjun, entering a society with vastly different expectations can be a shock, Justice Sherr says.
“Not only do you have to admit [the risks], you have to get the services, you have to be able to address them,” he says. “You have to show progress.”
The added hurdle is the short window of time you have in which to show progress: Children under six should not be made society wards after one year, the law says, so this means the court needs to decide the child’s future quickly.