Thursday, May 17, 2012


Written by Ray Ferris

Part Two of Four

Do you need a lawyer?
There are both advantages and disadvantages to using a lawyer. If you are in agreement with what the protection workers are doing and you have social workers that you can trust, you probably do not need to use a lawyer. You do have a right to address the court, but you may have to insist on being heard. At least it becomes part of the record. Like any other profession, there can be a great variation from one lawyer to another. They all have different levels of experience and expertise in different fields of law. A lawyer does not have to be experienced in family court to take a case and may not be familiar with how family court operates and with important precedents. Lawyers will vary in diligence and perspicacity and in many other ways. A person with expertise in your field may be far too expensive for your budget. Legal aid lawyers may take the line of least resistance and come ill prepared. So how do you decide on a lawyer?

First you need to understand the function of the lawyer. Lawyers all have training in law and in knowing the rules of evidence, court etiquette, and various tools of the trade. They should know how to issue a subpoena, how to draw up an affidavit and how to negotiate the court registry. Importantly, they are officers of the court and only a barrister is allowed to speak before the bar. That is why they are called bar-risters. They will always be able to get the ear of the judge, because they are part of an inner circle from which you are excluded. The law operates on what is written in the various pieces of legislation and on how the court chooses to interpret them in your case. Previous interpretations by upper courts are important and are called precedents. Thus it is important that judges and lawyers know what the law is in order to make sure it is followed. One of the functions of a lawyer is to review the wording of an act and draw it to the attention of the court and to argue about the interpretation.

How to use a lawyer.
One of the first things you need to know is to understand that your lawyer is there to advise you. In turn you listen to the advice and then you give your lawyer instructions. Not the other way round. Many experienced lawyers seem to forget this. You may even find an advantage in using a less experienced lawyer, who will be cheaper and may be more open to following suggestions and instructions. In a number of cases that have asked for my advice, it has become evident that the client had to tell the lawyer to do his/her job and also sometimes how to do it. Do your own checking. Ask your lawyer if they have actually read the CF&CSA. Ask what are the important things to know about it. Not only ask that, but ask how recently they have reviewed it. I have read the act many times, but I still have to check every time I advise someone, because I can easily get the wrong section or forget the precise wording. Later I will advise on some important sections that you can learn for yourself and make sure that they are not missed. Regard yourself and your lawyer as a team, both helping each other.

Be sure to discuss with the lawyer the hourly rates that will be charged. Be sure to be clear about the amount of retainer the lawyer will require and when it will be due. Consider with the lawyer the possibility of gathering key information yourself, possibly letting the lawyer do the important drafting, based on your work and then handling some of the court appearances yourself. If you prepare a written chronology of what has happened and give it to your lawyer, this should reduce the amount of time the lawyer has to spend in putting the information together and this will of course reduce the cost of the case.
I am going to use a specific case example, because it is a model of all the things that can go wrong in a case and how the welfare of the children can be completely lost in the obsession with procedure and argument. It is an object lesson in how to waste money on the wrong lawyer and in how easy it is to evade legal obligations. I refer to the celebrated Bayne case, covered by CBC Fifth Estate on January 9th 2012. To start with, they paid a lawyer $60,000 and had to sell their home to meet the bill. His expertise was not in family law and after several months, there seemed to have been no progress on their case. I should state that I have in-depth knowledge of the case because I worked on it for two years helping them and their lawyer. In the process, I read every piece of medical evidence and a great deal of non-medical evidence. I read the full summary for the ministry, the defence arguments and the detailed judgement.

The foundation of the ministry's case was that a paediatrician at the children's hospital alleged that the youngest of the three Bayne children had been injured by shaking. This is automatically alleges deliberate injury. The case was before the court for three years and the protection hearing took 22 days over 10 months. The children were in limbo for nearly four years before they were returned home. Chief provincial court judge, Thomas Crabtree took four months to deliver a written ruling. He rejected the main part of the ministry case, saying he did not accept the allegation of shaking. However, he did make a finding of minimal risk and made a temporary order. The children were in interim custody and temporary care limbo for nearly four years, before they were eventually returned home. This appears to ignore many of the important guidelines of the CF&CSA, which warn about the damage to children by long delays.

After all this time, it seems that Judge Crabtree did not take the trouble to review the act. He issued an order that was beyond his authority, which he had to retract and issue another one. This was not detected by the lawyers in the case, which supports my advice to read important parts yourself and make sure your lawyer does too. This judgement also gives credibility to the view that judges will generally find ways to support the establishment if they possibly can and the actual welfare of the children is a subsidiary matter.

Tomorrow: Look for part 3 of 4, How to Help Yourself
Ray Ferris retired from a a career with the Ministry of Children and Family Development has been openly critical of Ministry practices and case management for some time. Occasionally I print some of his informed pieces. Ray is the author of 'The Art of Child Protection'. You can purchase it from him by writing to )


  1. One thing when shopping for a lawyer is to try to search caselaw to and read cases in which their names appear. Did they "win" (meaning, in most cases, did the parents NOT lose their children to adoption.)

    Lawyers are preferred by judges as they usually know the ropes and can present an organized submission. Parents who represent themselves usually take more time, and some judge really get annoyed at this, because their caseload is usually heavy.

    A lawyer with "QC" (or Queens Council) at the end of the name indicates an experienced fellow, who usually costs quite a bit, perhaps starting at $400.00 per hour. A bargain lawyer might ask you for an up front $1,000. An average lawyer asks for $5,000 and charges in the range of $200 hourly.

    Because these civil proceedings are akin to criminal process, legal aid lawyers are available. However, these people have a set allocation of tasks and amounts they can bill for. Therefore, lengthy mediations they may attend, they likely will not get fully paid for their time, and they may not be able or willing to fight as hard for you. Some, (rarer than hen's teeth I suppose) their heart is in the right place and they can really make a difference.

    Evidence accumulation and organization is daunting, and a task not to be taken lightly or underestimated. The most difficult task a lawyer will have is acquiring information from MCFD parents need to examine in order to defend themselves. For example, the initial report to court document is almost always handed to parents or their lawyer a few minutes before "first appearance" proceedings begin. Certainly, this is not enough time to examine and properly respond.

    Most lawyers will not hand-hold parents, but a dedicated advocate really can help. These unpaid volunteers are usually parents who have been through the ropes, former social workers or other non-legal individuals who can really emphathize with parents, and know how to explain various steps in a language parents can relate to.

    That said, I hired a lawyer and had to let him go after spending $15,000, and he appeared only twice, and assisted with affidavit production, and wrote a couple of letters to MCFD to request disclosure. The remaining 15 months I was on my own. Scary.

    I found an advocate shortly afterwards, and the information I got was far more valuable than what I got from the lawyer.

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