Baby caught in legal limbo highlights woes of court delays

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An Ontario judge has issued a call to reduce court delays in child-protection cases after a baby born with opiates in his bloodstream lived in legal limbo for 22 months, and now must be pulled away from his foster mother as he is put up for adoption. Ontario law sets out 12 months as the maximum stay in state care for a child under 6.

The call from Justice Kevin Phillips of the Ontario Superior Court in Ottawa comes as a senior Manitoba judge moves to cut court delays by instituting strict time limits for child-protection cases. And Justice Phillips, like Manitoba's Glenn Joyal, Chief Justice of the Court of Queen's Bench, cites attempts to reunify families as a key reason for delay, along with a shortage of judges to hear cases.

Both judges say they were influenced by the Supreme Court's ruling in R v. Jordan, a drug-trafficking case in which the court established new time limits for criminal trials. The case in Ontario and the new time limits in Manitoba are signs that judges frustrated by delays in other legal areas are unwilling simply to put up with them, and are crying out against complacency.

Related: Manitoba sets time limits to speed up child-protection hearings

"The same attention and energy now being directed toward lowering time to trial in the criminal sphere should also be turned to this sort of case," Justice Phillips wrote in his ruling last month, in which he granted the Children's Aid Society of Ottawa the authority to put the child up for adoption, with no access to the birth parents.

And, citing the Jordan ruling, he said delayed proceedings are harming children and need to be addressed. "A trial without delay is an important feature of a child-protection application since passage of time has a real and meaningful negative impact on a child caught up in this context."

Such delays are not the norm, but they do involve scores of children. Ontario Superior Court Chief Justice Heather Smith, in a written reply to questions from The Globe and Mail, said that 82 per cent of the 3,367 child-protection cases completed in the Superior Court in 2016 were done within 12 months – which still leaves 18 per cent, or 608 cases, that went longer.

There were 132 cases in the system for longer than two years. (Ontario law allows for children older than 6 to be in care for a maximum of two years, cumulatively. The Chief Justice did not provide an age breakdown for the court statistics.) While the time to trial for cases in which both sides are ready varies from just one to two weeks in some jurisdictions to 20 weeks in others, some delays are beyond the courts' control, Chief Justice Smith said.

"Trial readiness is often the greatest challenge in these cases due to lack of resources (e.g. insufficient parents' counsel, assessors, treatment programs and counsellors, etc.)," she said.

In the case decided by Justice Phillips, the Children's Aid Society of Ottawa told The Globe that courts grant adjournments only where they feel a delay is in the best interests of the child. It said that is what happened in the case on which Justice Phillips made his call for action, after other judges had dealt with it along the way. "We feel confident the short delay warranted proper evaluations and assessment to ensure the best plan of care was presented and all other options were exhausted," communications supervisor Cindy Perron said in an e-mail.

The baby was born with such a large quantity of drugs in his body that he was essentially addicted to opiates, Justice Phillips said, citing the testimony of an addiction expert, and went into withdrawal, crying inconsolably for days, while he was treated with morphine. He is now at risk of developing behavioural disorders and learning disabilities, the judge said.

The toddler "calls his foster caregiver 'Momma' and has developed a deep bond with her," Justice Phillips wrote. "He is soon going to be permanently removed from her care. While some negative consequences of that disruption would have resulted in any event, the fallout is now exacerbated by the slow pace of this proceeding. The boy's bond with his interim caregiver is now deeper than it ought to have been allowed to get."

The mother is in jail serving 30 months for aggravated assault, for stabbing the father repeatedly with a kitchen knife during a mutual cocaine binge. The father presented a plan to maintain custody of the infant with the help of a sister. But Justice Phillips didn't find the plan realistic, based on the father's continued drug addiction, an unwillingness to be truthful with the court or child-protection authorities and his sister's lack of awareness of her brother's drug dependency. The father showed up disoriented to at least one supervised visit with his son.

Justice Phillips said that while the Children's Aid Society gave the father every chance to rehabilitate himself so he could maintain a presence in the child's life, it should have been obvious from the time of the cocaine-fuelled stabbing incident – when the child was just seven months old – that the attempt was doomed.

"In my view, there was no reasonable prospect that [the mother or father] could have been expected to turn themselves around in any time close to a year, or even 18 months, from the apprehension. The nature and extent of their dysfunctions were simply too multifaceted and deep-seated."

Deanna Paolucci, a lawyer who represented the father in the case, said it would be wrong to set absolute time limits in child-protection cases because so many variables are at play. "I have had cases where the parent is wait-listed for over six months for specific treatment or program," she said in an e-mail. "It would be inappropriate to provide hard and fast rules which remove children from their parents permanently, without providing the parent the resources necessary to address the protection concern." For some children, adoption placements may be difficult to find, because of mental-health issues, age or other factors, and they may benefit from a process that allows their father or mother "more time to place themselves in a position to parent."

In the Supreme Court's Jordan ruling, the court set limits of 18 months from charge until trial completion in Provincial Court, and 30 months in Superior Court. Chief Justice Joyal of the Manitoba Court of Queen's Bench said the ruling convinced him that, if judges on his court did not limit delay, higher courts would do it for them.