Walker's SCATHING INDICTMENT - Part 5 of 6 - Trial Two

This is my synopsized prose version of Justice Walker's 140-page judgement presented in several segments that reveal the substance of Walker's overview of evidence that demanded his verdict against the Ministry of Children's Child Protection. No stated opinion or fact appears here that does not also appear in the Justice Walker's ruling (legal document). It is public information

In Trial Two the plaintiffs sought damages based on the tort of misfeasance, alleging intentional and reckless misconduct by the Director and her agents acting in breach of the standard of care as well as fiduciary duty, being motivated by bad faith and malice. The same claim for costs was made at first trial but put over to the second trial. More specifically in Trail Two plaintiffs claimed that the Director and her agents failed to protect the children from B.G.; failed to investigate reports of sexual and physical abuse; wrongfully apprehended the children from their mother; unreasonably held the unjustifiable belief that J.P. was unfit to parent; ignored Court orders; abandoned statutory obligations. The result has been ongoing emotional harm to the children from abuse by B.G. and from being withheld from their mother for two and one-half years. Further, while in the care of the Director the youngest child, P.G. was sexually abused because of the unsupervised access.  

In Justice Walker's Second Trial judgement, for ease of reference, he referred to the Director and her agents as the “Director”. The Director and the Ministry cannot be sued. Therefore, the defendant was the Province of British Columbia since the Province is responsible for the Director and the Ministry. The Province denied any basis for a finding of misfeasance, asserting that the Director fulfilled all common law and statutory duties to the children. B.G. denied all claims against him.  Judge Walker in his ruling certainly disagreed. He determined that the infant plaintiffs established the liability of the Province for negligence and breach of fiduciary duty owed to them. The plaintiffs, including J.P., also proved the misfeasance claim. Judge Walker determined that the Director and certain Ministry social workers acted well outside of their statutory mandate and the duty to protect children and that the nature of their libelous handling of the case varied depending on the individual. It ranged from intentional misconduct, bad faith, reckless disregard for their obligation to protect children, breach of the applicable standard of care to unreasonably supporting the custodial interests of the children’s father even if it meant he sexually abused them.

Walker's SCATHING INDICTMENT - Part 3 of 6 - Unsupervised Access

This is my synopsized prose version of Justice Walker's 140-page judgement presented in several segments that reveal the substance of Walker's overview of evidence that demanded his verdict against the Ministry of Children's Child Protection. No stated opinion or fact appears here that does not also appear in the Justice Walker's ruling (legal document). It is public information

Because of the allegations of sexual and physical abuse, Judge Walker issued a court order on December 21, 2009, that permitted B.G. to have only supervised access (A Supervised Access Order) to his children. Then on December 30, 2009 without any basis for the action, the Director apprehended J.P.'s children. Mr. Strickland without foundation, misled the Deputy Director by informing him that J.P. was suffering from mental distress and illness so severe that she was a risk both to herself and to her children. Mr. Strickland and his subordinates failed to insure the truth of information contained in their prepared report drafts to the Director. The Director then initiated the Apprehension Proceeding in Provincial Court in January 2010, but did not disclose to the presiding judges the allegations of sexual 
and physical abuse or the Supervised Access Order and the circumstances relevant to it.

The Provincial Court relying on the Director's information, made orders that permitted the Director to use her discretion in providing to B.G., access to the children, even unsupervised access. Against the vigorous objections of J.P., in May 2010, the Director did provide to B.G. unsupervised access, even though B.G. would thereby be in breach of the Supervised Access Order with which the Director was familiar.

As early as February 2010 almost all of the social workers involved with the case had become convinced that the children should be returned to their father and they supported his claim for sole custody. The children were briefly placed in care of J.P.'s sister and subsequently with her brother and sister-in-law, and by June 2010 they were with a foster parent. The Director continued temporary custody of the children well beyond the maximum time permitted by the governing statute, and kept the children in foster care until June 2012. To do this, the Director relied on part of a section of the governing legislation that she should have known was inapplicable.

WHETHER TO REMOVE OR TO RETURN

Parents frequently find it so difficult; it is almost impossible to recover custody of their children, once the child is removed. The emphasis of the cases changes from whether the child should have been removed, to should the child be returned. Now the parent must demonstrate entire cooperation with CPS, good behaviour, complete control of emotion and attitude and the tongue, and fitness to be reunited with the child. The need for the CPS agency to demonstrate the need for out-of-home placement evaporates. The burden of proof shifts from CPS to the parents by virtue of who has physical control of the child. It is a procedural spectacle. Once a child is removed it is very difficult for lawyers to get a child returned to parents whether the removal was appropriate or it wasn't. Children who are removed, are likely to remain in government care for a long time, perhaps years.

TODAY WAS THE DAY

Today was the day.

Poster Designed by Jean Nicol

The news became public that Amie Van Dyk, biological mom to Ayn Van Dyk was, as of today, the legal guardian and primary custodial caregiver for her daughter. There are no continuing supervision requirements involved. At Amie’s request, Ayn will remain with the present foster caregivers for the next two weeks so that she can conclude her schooling with her present class and teacher. During those two weeks Ayn can come home for the weekends. Both of these parents, Amie and Derek Hoare,  share a mutual respect that allowed them to say that Ayn coming home was of paramount importance, and if she could not be returned to one, then each wanted the other to be that guardian. From that expression it can be assumed that Derek will now once again be able to enjoy the company of his daughter as well, and this youngest of three children will be able to spend time with her two brothers who live with dad.

Needless to say, this is a happy, happy day.  The family is ecstatic. And remarkably there are over 3,000 Facebookers who tied onto Ayn’s case and her page and have been eagerly longing for this day. Whoever we are, it is impossible not be the teeniest bit emotional about this. Three years of separation is a very long time, too long.

MCFD did the right thing on this particular day. That’s all I can say about that.

Part 1 of 3, A BRIEF EMOTIONAL FLASHBACK

AYN, today, 18 mo older than when she left

Amie Van Dyk is mom to Ayn, the ten-year-old girl who has been in foster care since June 2011. Amie and her ex-husband Derek Hoare, have agreed that he should be the primary caregiver for their three children, who include two sons, older than Ayn. Derek has had custody and care of the trio since the parents’ marriage dissolved, at least that’s all the marital details any of us casual readers need to know. What is of importance to us if we care to understand the dynamic of this situation is that two of three children are autistic. One of them is Ayn. As it pertains to visitation with the children and other arrangements concerning them, Aime and Derek have a sensible relationship and understanding.

It was during the summer of 2011 that Ayn was playing in the back yard of the home in which Derek and the three siblings lived, that Ayn wandered off. Ayn is a lovely girl, playful, affectionate, and in some regards challenging. Derek who learned how to communicate tranquilly with her, always met the challenges capably. But a healthy father-daughter relationship does not eliminate a child’s curiosity, and on a June afternoon, Ayn decided to explore the neighbourhood.  When Derek noticed that she had scaled the high fence and left the fairly secure yard, he searched and couldn’t find her. Anxious about this, he called for police assistance, and three hours later Ayn was located in a neighbour’s yard just a couple of homes away. The reunion was joyful but also short-lived. Within a couple of days, MCFD showed up as two social workers with a voluntary surrender of custody form that Derek could sign, or they would simply remove the child without his permission. MCFD conducted that seizure at Ayn’s school one day.

Initial observation of the girl’s treatment following that removal, was then, and is now questionable to many, appalling to others. For some weeks the child carried a photo of her daddy, wanting him, missing him, wondering where he was and when he would come for her. And in the early weeks she was given medications, anti-psychotic drugs, a host of them was Derek’s informed allegation. Professionals may handle the aggressive episodes of an autistic girl that way. A loving parent predisposed to non-doping but rather communicative interventions, did not. That’s a brief history of the basic information. A volume of emotions goes along with the history.

DEFENDING PARENTAL FREEDOMS IN A CHILD-CENTRED SYSTEM

Strain exists between the state and the parts which comprise it. As it pertains to the family issues aired for the past four years on this blog site, the question has become multi-faceted. What is the appropriate role of family within a free and democratic society? What is the appropriate role of the government with respect to families?