Saturday, May 19, 2012


Written by Ray Ferris

Part Four of Four
Part 4of4
Evidence:Dilate Peoples by Ezekiel Antoniewicz
The only really valid evidence is factual. Expert opinion is allowed on validation of expertise, but even expert opinion must state the facts on which it is based. You will note under sections 66 and 68 that the hearing may be as informal as the judge may allow, so it is not necessary to be as slavish to process as in criminal court. Section 68 allows a certain amount of hearsay evidence that the court considers reliable. The writers of the act did not intend this section to make the act into a free for all, with no regard for the rules of evidence, but that is what happens. Social workers generally get little training in the rules of evidence. They cannot distinguish between fact, opinion, hearsay and rumour.

In the 22 days of the Bayne hearing there was only one fact and that was not disputed. The rest was all opinion, hearsay, rumour, conjecture and thinly disguised smear. When you get your disclosure, look at what is fact and what is not and assist your lawyer in discrediting the evidence. She should challenge all the hearsay and so on. I had occasion to discuss this with a couple of family lawyers last summer. They told me that it is now just called “anecdotal evidence”. Oh great. We just find a new label and it is alright then. They seemed okay with it. I hope your lawyer is not.

Mediation.Have no illusions. As soon as you get into the courtroom you are in an adversarial process against a determined adversary with deep pockets. Never mind all the principles under sections 2 and 71, they don’t mean a thing. If you enter into mediation, it will just become part of the adversarial process. The imbalance of power is such that it is like the lamb seeking mediation with the wolf. The usual routine is that you are supposed to admit that you are a risk to your child, or nothing can move forward. They may simply tell the judge that they cannot work with you because the parents are not willing to co-operate. Mediation may be used as an opportunity to manufacture evidence against you. The Act also allows mediation and conferencing to derail the statutory time lines of the act. Believe me the social workers make the most of it.

Accountability and internal review mechanisms.
I would not advise anyone to try the internal review mechanisms in the ministry, because I have never known anyone get anywhere by doing so. Basically it turns out to be another case of the ministry closing ranks in self-defence and all you will get is the run-around. It only frustrates by raising false hopes. Basically it is a waste of time to go to the Ombudsperson too. They take for ever to do anything and they are very reluctant to look at anything that is before the court. However, it is worth while going to the office of the representative for children and youth and ask for an advocate. They tried hard for the Baynes and had a minor influence. You can go to your MLA, but they too just get the run-around. In truth, even the minister is virtually powerless.
 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

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