Read easy-to-share versions of this story, here:
Remember when the BC’s Ministry of Children and Family Development (MCFD), after an anonymous report, decided my kids couldn’t ride the bus (or do anything) on their own until they were 10 years old?
I’d spent 2 years busing with my kids, they had GPS-enabled phones at all times, there wasn’t a single safety incident, and no law or regulation against what I was doing.
Even the MCFD said I’d gone “above and beyond” what was reasonably expected of a parent in training my kids to take the bus.
The attention to this issue was immediate and overwhelming supportive. I received hundreds of positive messages and the media covered it as far away as Australia and the UK. It was front page news across Canada.
To date, the MCFD has never backed away from their 2017 decision. Social workers have repeatedly stressed to me their decision is “non-negotiable,” threatening “more intrusive action” (the removal of my kids) if I didn’t comply.
In Fall 2019, we took the MCFD to BC Supreme Court.
We asserted that the MCFD’s decision exceeded the MCFD’s authority (under their statute) and infringed on my s. 7 Charter rights.
A huge thanks to my hundreds of supporters as it took all of $45,000 to do this.
This January, we got our ruling. We lost, but we’re appealing. Here’s why:
After two full days of court hearing in September 2019, we, my attorneys and I, had many reasons to feel very positive.
The Ministry went into our petition hearing asserting that their ban on kids under 10 being left alone at any time – including on public transit – was not a decision at all, but merely a “recommendation.”
By adopting this position, the MCFD hoped to have the case dismissed outright, as only ‘decisions’ are judicially reviewable, not recommendations.
The difference is key.
If the Ministry had merely recommended to me that I not put the kids on transit, I would have had the choice to either follow their recommendation or not. As a parent, my views would be paramount. Instead, the Ministry required the kids to be supervised at all times. I had no choice in the matter as they had made their decision.
Furthermore, the Ministry really did not want letters and communications from their social workers being deemed decisions with legal consequences, otherwise social workers’ decisions could be subjected to judicial review anytime someone disagreed with them on the implementation of a decision or a requirement (which is likely how it should be, don’t you think?).
Fortunately, the judge quickly saw through the MCFD’s efforts on this front.
Ever since the Ministry first made their decision in June 2017, they’ve consistently referred to it as just that – a ‘decision’ – in numerous phone calls, meetings, and letters. In one email, I even asked the MCFD if this was just a “recommendation,” to which they said they, “stand behind their decision.”
When I asked what would happen if I didn’t adhere to their decision, the MCFD ominously intoned that they “would have to take more intrusive action.” Which for a divorced parent with 50% custody had pretty clear implications.
But there’s an even bigger reason why the MCFD didn’t want their decision to be deemed legally binding: because the very statute that grants the Ministry their powers, the Child, Family and Community Service Act (the “CFCSA”), doesn’t allow them to make the decision they forced on my family.
Effectively, the MCFD created a bespoke law and applied it to me. This went well beyond the limitations of the statute that grants the Ministry and social workers their mandate.
They had hoped to argue that since I’d agreed to abide by their decision, it wasn’t an abuse of their authority. Instead, they positioned it to the judge as advice that I willingly accepted.
The judge saw right through this as well, stating during the trial that the MCFD had “cajoled” me into agreeing to their decision, so the MCFD could close their case. The judge went on to say orally that, “he [Adrian] knew that if he didn’t go along with your plan – forgive my wording – but the Ministry would scoop his kids.”
The judge, having been a labour lawyer for 16 years, recalled a union saying that also applied to my case: “Work now, grieve later.” In short, he knew that if I wanted to keep my kids, I had no choice but to agree to the Ministry’s decision, then fight it in court.
The decision vs recommendation issue has been decided. Justice Kelleher’s reasons deliver a very clear finding that the MCFD made a decision that had legal ramifications for my rights.
This is positive news, not just for me, but for all BC parents who may seek to legally review a social worker’s mandatory decision. No, they’re not just recommendations – they’re judicially reviewable decisions.
But here’s where it gets even more interesting:
After all that, the judge goes on to find that the MCFD’s initial June 2017 decision prohibiting my kids from being unsupervised at any time was flawed but went on to say that the Ministry’s later reasoning, which was only provided after over a year of fighting and an entire administrative review process, was “reasonable” and therefore dismissed our petition on a legal principle.
So it would be cased closed, therefore, if “reasonable” was the legal test for the validity of the MCFD’s decision under the CFCSA.
Fortunately for us, and what forms the basis of our appeal, the MCFD’s decisions must all be rooted within the limits of the CFCSA – the statute I mentioned previously that grants the MCFD and social workers their powers.
In the Reasons for Judgment, Justice Kelleher failed to address the statutory limits granted under the CFCSA, and failed to consider that the Ministry had no statutory ability or power to make the decision it did.
It may be “reasonable” for me to tell you not to run a yellow light, but I don’t have the power to write you a ticket for it.
The MCFD’s statute does not allow their social workers to make legal decisions. If the MCFD wants a legal decision imposed on a parent – with the ramifications I was repeatedly threatened with – they must get a “supervision order” from the court.
This is why my attorneys and I now feel we have an even stronger case on appeal than we did originally. No matter how “reasonable” an authority’s position on one’s actions may be, any decision they impose that affects your rights must be grounded in a statutory power.
So we’re appealing! And with even greater confidence this time, because:
- We have a ruling that the MCFD imposed a legal decision on me, with ramifications if I didn’t follow it
- Their decision exceeded the bounds of the MCFD’s statute, as the MCFD’s own attorneys admitted during the trial
We’ve spent $6,000 in the appeal process (over $2K alone for transcripts of the Sept proceeding). My attorneys expect a total cost of $15,000 for the appeal, which will be done this Spring.
Join me in fighting on behalf of all parents. Parents who are cowed into submitting to Ministry decisions – even when those decisions limit their family’s legal freedoms with no recourse to challenge.
Since 2017, I’ve heard from many of them.
I’m hoping to raise some of the appeal funding via GoFundMe, for those willing/able to contribute.
If you’d like to read the Judge Kelleher’s full Reasons for Judgment, you can check them out on Canlii.
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