Mom takes child protection appeal to top court
The Metro Vancouver mom at the heart of an eight- year- old, high- conflict child tug of war that rocked the provincial government has asked the Supreme Court of Canada to consider her case.
The B. C. Court of Appeal ordered a new trial after discrediting the marathon proceed- ings that raised child sex- abuse allegations against the woman’s ex- husband, and serious concerns about the conduct of social workers, sparking a major review at the Ministry of Children and Families.
In its stunning Aug. 31 ruling, the appellate bench overturned a lower court’s factual findings and eviscerated B. C. Supreme Court Justice Paul Walker’s decisions, saying the father had been treated unfairly and a charlatan had appeared as an expert witness.
Walker gave the mother custody of the kids in 2012 after conducting a child- protection trial that lasted 91 days and involved explicitly detailed sexual abuse disclosures from three children.
The judge issued a permanent order prohibiting the father’s access to the children, noted the brief filed with the Supreme Court.
Walker then heard a civil trial involving the mom’s claims against the ministry and social workers that lasted 147 days.
“If on the facts of this case, a trial judge cannot conclude or is not entitled to conclude ( and have that conclusion remain undisturbed after three and half years of inaction) that a father sexually abused his children and poses a real risk to them or that child protection workers breached their statutory duties, it is very difficult to imagine how family and child protection law can properly operate to keep vulnerable children safe,” states the voluminous submission to the high court by Surrey lawyer Jack Hittrich.
“Canada’s children deserve better.”
The brief says the appeal panel erred by looking at the case through a criminal lens rather than the proper perspective of child- focused risk assessment; by giving precedence to the rights of the father, the alleged abuser, instead of the best interests of the children; and by excusing social workers of any responsibility because no criminal charges were laid and experts with partial information did not definitely rule out the possibility of sexual abuse.
The parents, who are identified in court only by their initials — the mother J. P. and the father B. G. — began living together in 1999 and separated in October 2009 after his arrest by Vancouver police, who did not charge him. They have four children — BTG born in 2002, KG in 2004, BNG in 2006, and PG in 2008 — who were 7, 5, 3 and 1 at the time of the separation.
In December of 2009, the three older children disclosed allegations of sexual abuse.
Social workers initiated an investigation, but concluded there were no child- protection concerns.
Still, J. P. launched B. C. Supreme Court proceedings in October 2011 and the family/ child- protection trial proceeded, with reasons released in 2012.
The provincial government consented to all relevant evidence from the family trial forming part of the civil trial, that then began, and did not object to Walker hearing the case against the ministry and its staff.
B. G., who denied abusing his children, did not attend all of the civil trial and chose not to make a closing argument.
In a scathing, 341- page ruling in 2015, Walker lambasted him and the ministry.
The province and the dad appealed and the unanimous three- justice panel hammered Walker’s conclusions.
It dismissed the civil claims and held Walker’s findings of liability were based on his “misapprehension” of the evidence and that social workers acted appropriately.
“The evidence is clear that the director prioritized the safety and well- being of the children by obtaining and following expert reports about the parenting abilities of the parents,” Justice Daphne Smith wrote.
Hittrich said that ruling left his client J. P. disappointed and horrified at another round of court proceedings, with the children now reaching adolescence.
“The message to lower courts is crystal clear: It does matter how much time is taken, how many opportunities are afforded to the parties to challenge ( and to argue every allegation and nuance), nor if a party consents to the importation of evidence,” the Supreme Court submission says.
“The court of appeal can, and will, disregard key findings of a trial judge and may simply recast the case to suit a particular outcome.”
The province, father and others named in the appeal have 30 days to respond, Hittrich added, and then J. P. has 10 days to submit a rebuttal, after which it will be up to three Supreme Court justices whether to grant leave.