Honourable
Mr. Justice Walker rendered a scathing decision against the Director
of the Ministry of Children and Family and the agents of the Ministry. After
approximately 130 pages of factual summary, Justice Paul Walker wrote the following judgement dated, July 14, 2015.
It is by far the most wounding judgement ever directed
against the often negligent and criticized Ministry. The ruling will cost the
Ministry a fortune that taxpayers are funding because this was a lawsuit
brought by a mother who was wronged and whose children were sexually molested
by their father and the Ministry failed to investigate thoroughly and sided
with the father against the mother. The Ministry got it all wrong all of the
time. And sadly, this is the allegation that so many parents have been making
over many years. Now Stephanie Cadieux, Minister of Children and Family
promises a review, but she must understand that she must conduct this rather
than to leave it to MCFD to do a self-assessment. Read Justice Walker's entire ruling.
You will shudder. Here is his conclusion.
XXII.
CONCLUSION
[1071] The Province is liable for
misfeasance, breach of the standard of care, and breach of fiduciary duty on
the part of the Director and her agents.
[1072] The misfeasance of
Mr. Strickland set in motion a series of events, including the
Apprehension, which caused various social workers and Ministry employees
involved in the file to view J.P. as manipulative and malicious. . The Director
failed to assess and investigate reports of sexual abuse as required by the CFCSA
and the standard of care. The Director had no reasonable basis to apprehend the
children. The Apprehension was wrongful.
[1073] The Director unreasonably and
with a closed mind rejected at the outset the veracity of the sexual abuse
allegations and took the view they were fabricated by J.P. before the VPD
completed its investigation and before the children were interviewed. The
Director did not consider whether the children were at risk of harm as a result
of the children’s sexual abuse disclosures and other evidence. The Director
concluded that the children needed protection from J.P. and not B.G. without
conducting any assessment and investigation of her own.
[1074] As J.P. continued to complain
about the sexual abuse of her children and to protest the Director’s conduct,
social workers’ antipathy towards her increased, and as it did, the Director’s
focus turned away from the best interests of the children to J.P. As early as
February 2010, the Director encouraged B.G. to apply for custody in order to
return the children to him, regardless of information adverse to B.G. and even
though she acknowledged the possibility that B.G. had sexually abused his
children. In that latter respect, the Director acted in breach of her fiduciary
duty to the children while they were in her care.
[1075] The children remained in foster
care while the Director provided her ongoing support of B.G., until March 29,
2012 (when the Director withdrew her protection concerns about J.P.). The
children could not be immediately returned to their mother’s care because of
the need for appropriate reintegration having been kept in foster care for so
long.
[1076] The Director rebuffed J.P.’s
efforts to ameliorate the Director’s protection concerns and always, and
unreasonably, assumed the worst of J.P.’s motives and conduct. In addition to
Mr. Strickland’s misfeasance, for which the Director is responsible,
social workers, for whom the Director is also responsible, engaged in a
wholesale disregard of their statutory mandate and the requisite standard of
care expected of them to protect the children from harm.
[1077] Social workers who became
involved in the case for the Director sought to further the plan to support
B.G. in a manner that overlooked the children’s best interests. The Director’s
antipathy towards J.P. diverted her attention from the children’s needs for
medical intervention in spite of Mr. Colby’s opinion evidence and reports
of the children’s highly disturbing sexualized and aggressive behaviours
provided by supervised access workers. That antipathy, coupled with the plan to
support B.G., led social workers to rebuff J.P. personally as well as the
information she tried to provide in support of her case and to provide services
for the children. Based on the evidence available to the Director by mid to
late December 2009, it should have been apparent to the Director that the risk
of harm to the children from B.G. was very high.
[1078] The Director was put on notice
that B.G. had sexually abused the children and would do it again, and she
cannot say now that she did not know it was possible or could occur while he
was given unsupervised access to his children.
[1079] The Director’s decision to
provide B.G. with unsupervised access led to P.G. being sexually abused by her
father. Her decision also placed the children in close, regular, and unsupervised
proximity with the person who had abused them
[1080] In the course of pursuing custody
of the children in favour of B.G., the Director decided that she did not have
to abide by orders and directions of this Court about B.G.’s supervised access
to the children. No credence can be given to the Director’s current advice to
this Court, communicated through counsel, that she will abide by orders of this
Court. Her advice is inconsistent with the position she recently took before
another judge of this Court.
[1081] The Director provided false and
misleading information (in the Form “A”) to the Provincial Court to support the
Apprehension and failed to correct or amend even though its social workers
(depending on whom and at what point in time), knew or ought to have known it
contained false and misleading information. She also relied on the Form “A” and
other incorrect affidavit evidence when supporting B.G.’s custody application
in this Court, when pursuing her application for an extension of the temporary
custody order in the First Trial, and seeking the restraining order against
J.P. in the Provincial Court. The Director improperly interfered with
Mr. Colby’s investigation because she did not agree with an order made by
this Court.
[1082] The Director delayed in
delivering documents requested by another branch of government in order to
process the plaintiffs’ claims for compensation. Her conduct was either
deliberate or the result of gross neglect but in either case the conduct was
callously indifferent to the children’s needs.
[1083] In all, I found that the Ministry
employees who gave evidence, who were involved with the plaintiffs, lost sight
of their duties, professionalism, and their objectivity.
[1084] Even today, many of the social
workers involved in the case doggedly stick to their adverse view of J.P.,
despite the Director’s decision to withdraw her protection concerns, the lack
of any expert opinion evidence that J.P. suffers from a mental illness and the
findings from the First Trial that the children were sexually and physically
abused by their father. Many Ministry employees are unable to comprehend, let
alone accept, any reason for the Director to have reversed her position, as she
did, during the First Trial.
[1085] Some Ministry witnesses were
openly hostile towards J.P. when giving their testimony. Many of them refuse to
accept the findings of fact made during the First Trial despite the claim made
by some of them that what they wanted all along was to have an independent
third party examine all of the evidence and determine if sexual abuse had
occurred.
[1086] Immunity afforded by the CFCSA
to good faith discretionary decisions is not afforded to the Director and
social workers in this case.
[1087] The Director is also required to
pay for special costs of the First Trial in an amount that will be determined
from further submissions.
[1088] In conclusion, I wish to add that
J.P. assumed and carried out the Director’s statutory mandate to protect her
children. If it were not for the Herculean efforts of J.P., the children would
now, through the fault of the Director, be in the custody of their father who
sexually and physically abused them.
