CASE CONFERENCING (What a Parent Needs to Know) PART TWOBy Ray Ferris
Ray Ferris is a retired employee and administrator with the Ministry and is now a diligent critic of substandard case work and oversight and a proponent of change to Child Welfare and in particular Child Protection. He has written this two-part comment that speaks to Case Conferences and the article written on the same subject by PAPA INBC. On January 20, 2011 the contributor known as PAPA INBC or People Assisting Parents Association, wrote advice for parents who find themselves in Case Conference with Ministry of Children representatives. His piece was called A CASE CONFERENCE (What a Parent Needs to Know). Papa has also written two lengthy additional pieces of advice as comments on yesterday's GPS blog post by Ray Ferris.
Here is the final installment of this two-part post.
"Now I will try to give you one or two useful hints. You do not need to understand the whole act, but you should know certain sections that can be helpful to you and above all make sure that your lawyer reads those sections. You should read and memorize as much as possible of the following sections. Section 2, subsections 2,3 and 4. Guiding principles, service delivery principles and the best interests of the child. You can see right away that the ministry and the court are paying no attention to these sections and your lawyer should constantly be reminding the court of these sections.
"Read sections 66 and 68 and here is why. Section 66 (b) says that the hearing may be as informal as the judge may allow. This means that the judge can let you speak if she or he wishes. It does not have to be under oath, but can be a simple discussion. It is up to the judge. We used to do it years ago and it saved a lot of time and money. Section 68 deals with allowing hearsay evidence. It permits any hearsay evidence "that the court considers reliable." It is this loophole that allows the ministry to totally disregard the rules of evidence and bring in any opinion, rumour or scuttlebutt the it wishes. Not only that the courts admit it all . They now re-label it "anecdotal evidence." Unfortunately defence lawyers seem to accept it. However, it cuts both ways and a parent and defence witnesses can do the same thing. Section 68 (b) allows the court to accept any written reports it considers to be relevant. You cannot cross-examine a written report and the only way you can do it is to haul the author into court and grill them. This does not usually happen. By the same token you can file written reports under the same section. If you want to file dozens of letters of reference you can do so. Commendations from the autistic society, the school or your doctor this section allows it. They may not get read, but they can be filed. Of course the ministry will try to block it if they can."
"Finally a word about statements of fact. The term statement of fact is treated with great elasticity by the courts. When I was assisting Paul and Zabeth in their quest for more access, I tried hard to stick to the facts. I am pretty good at identifying facts and stating them in a clear fashion. One makes up a statement of facts and attaches it to a sworn affidavit to file with the court. I looked at one or two of the statements of fact filed by the ministry and I did this to make sure that I had the correct legal format to use as a template. Then I noticed a startling fact. There was not one single relevant fact in the whole two page document. It was all allegation, opinion and hearsay. Just like the rest of their evidence. Apparently the courts were oblivious to all this and allowed anything. So guess what? I quit worrying about the facts and did the same thing. Of course I did have a lot of facts to put in, including reminding the court of the guidelines in the act, which are a fact. But I did not mind if something was opinion etc. The court never questioned a thing. So my friends do not worry if your statements are not strictly factual. The court and the lawyers don't seem to care, so why should you?"
This day's writeup is off the scope of what the one-hour mandatory case conference entails.
ReplyDeleteSee the chart to see where in the legal scheme of things that the event appears. Rule 2(1).
http://www.pa-pa.ca/pdf/CFCSAlegalflowcharts.pdf
At this stage, there really no discussion of evidence, there is no testimony by anyone. It is an informal off the record discussion.
Does the parent agree with what MCFD wants and wish to avoid the trial? No, well, lets move on to the next step, the CFCSA s.40 protection trial.
It is not for the parent to ask MCFD whether or not they agree with what THEY want, the return of their child. Parents have to bring clear evidence of a change in circumstance, perhaps an expert report recommending return, that would convince MCFD to change their mind. Saying the removal is wrong is said at the Presentation Hearing, and the decision to further hear the matter is made then.
The case conference is a formality MCFD attends, but typically ignores. Parents simply need to use the event to get as much information as they can on the position of the Ministry, their witnesses they intend to use, and a reiteration of summary of their facts.
This preparation will be needed to offset the damage Ray succinctly details above. Hearsay evidence reigns supreme in the world of MCFD and their abuse of the CFCSA and basic court proceedings.
Parents need to counter with facts and real evidence and credible witnesses in order to illustrate the stark contrast of the tricks MCFD will pull. These tactics were on full display in the debacle of a trial the Bayne were needlessly put through.
The "anecdotal evidence" Ray refers to is MCFD's attempt to create a "preponderance of evidence" to sway the judge and to give him lots of choices to cherry pick through to pick out the worst to included in reasons for judgment.
As lawyer Doug Christie is not a typical lawyer, he thrashed MCFD's so-called "evidence" by conducting thorough cross-examinations.
It would be useful in this case, because it is about Derek and the return of his daughter, to outline how the case conference time was used in his case and print it here so other parents can compare it with their experience.