Top court won’t hear Motherisk case
Family split up due to flawed testing devastated as legal battle ends
“I worked damned hard, and I just feel like it was all for nothing, to try and give my daughter a better life.” C.T. (MOTHER)
It’s the end of the road for the parents in a hotly contested Motherisk case.
The Supreme Court of Canada has dismissed their application to appeal a decision that denied them access to their daughter, who was apprehended by the Waterloo children’s aid society after a Motherisk lab test purported to show her mother was using cocaine.
The mother denied the finding by the now discredited lab but was unable to disprove it.
The emotional court battle that followed underscored weaknesses in the child welfare system and how it treats Indigenous families, as well as the long-standing reliance on Motherisk’s flawed hair drug and alcohol tests in high-stakes cases in ways that often can’t be undone.
The parents, who are identified by their initials to protect the identity of their daughter, were devastated by the news on Thursday. They had hoped for one last legal chance to win the right to see their daughter again.
“I don’t know how I’m going to go on. I just don’t know how this can be,” said the mother, C.T. “I worked damned hard, and I just feel like it was all for nothing, to try and give my daughter a better life ... It’s like a fresh wound every day. It’s never going to go away. I just want my little bean sprout.”
Said the father, J.B.: “The system failed us. I just know she won’t be young forever and there will come a day where she will come looking ... Bottom line, you just hope (she) turns out OK.”
Before the Motherisk lab was closed in the spring of 2015 following a Star investigation, child welfare providers across Canada spent millions on the hair tests, believing the results were hard proof of parental substance abuse. In some instances, children were removed permanently from their families.
Despite assurances from the Hospital for Sick Children, which housed the lab, that Motherisk’s evidence could be trusted, a government-commissioned review determined in late 2015 that the testing was “inadequate and unreliable” for use in court and recommended a review of individual cases.
Motherisk Commissioner Judith Beaman concluded her review in February of nearly1,300 affected child protection files in Ontario. In her report, Beaman described the widespread use of Motherisk’s testing in these cases as being “manifestly unfair and harmful.” She found the testing was “imposed on people who were among the poorest and the most vulnerable members of our society,” including a disproportionate number of Indigenous families.
In this case, the girl was made a Crown ward in 2015, without access to her parents, following a trial that unfolded just as the concerns about Motherisk surfaced. The trial judge said that she had disregarded the positive cocaine hair tests and cited other factors, including concerns about the mother’s mental health.
That view was shared by the Motherisk Commission, which examined the case and concluded in the spring of 2016 that Motherisk testing did not play a key role in the outcome. The mother applied for a judicial review of the commission’s decision, claiming she had been shut out of the process, but a divisional court dismissed the application.
The parents appealed the trial judge’s 2015 decision and, in February 2017, a Superior Court judge overturned the “no access” order. Justice Grant A. Campbell found the Motherisk tests led to the apprehension of the girl in 2012, which he said was “based entirely on that now totally discredited drug testing conducted by Motherisk.”
Although the girl, who is now 11, wished both to be adopted and to continue to see her parents, the prospective adoptive mother said she would not proceed if access was allowed. Based partly on the parents’ Indigenous heritage, which Campbell said should have triggered special considerations, he granted access but stayed its enforcement so there could be a hearing to decide whether contact with the parents was in the child’s best interest.
In December 2017, the Court of Appeal overturned Campbell’s decision, in part because of the adoptive mother’s wishes. Justice Mary Lou Benotto, who wrote the decision, also said the child’s Indigenous heritage was based “on nothing but the parents’ self-identification.”
“There is no evidence that the parents had any connection to their culture; that the child was ever exposed to the Indigenous culture; or that anyone from the Indigenous community had ever been involved with the parents or the child,” she wrote.
The parents asserted that the Supreme Court should hear their case, in part, because the Court of Appeal “erred in its consideration of the children’s Indigenous heritage.” Considering the chronic overrepresentation of Indigenous children in care, the case presented Canada’s highest court with an opportunity to explore an issue of “critical public importance,” the parents said in their written arguments.