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When your child-protection trial is “To Be Continued…”

Justine waited 19 months for her child-protection trial to start — only to see it adjourned. B.C. lawyers say trials like hers are often shelved for months, even years, while kids stay in foster care and parents are kept waiting.

Nineteen months after her kids were removed from her care, Justine sat in court waiting to tell the judge her side of the story, but that chance never came.

Her child-protection trial was adjourned before she could take the stand and defend herself against the government’s allegations that she’s an abusive mom, unfit to raise her four daughters.

That was in March 2018. Now she has to wait until June 2018 for the court to revisit her case.

In the meantime her kids will stay in foster care, where they’ve been since August 2016. The trial will ultimately determine whether Justine — whose real name we’re withholding to protect her children’s identities — will get her kids back or if they’d be placed permanently in government care.

A mother’s wait

  • Justine waited 19 months for her trial to start, in March 2018;
  • 5 days, in vain, for her chance to take the stand and defend herself against the ministry’s allegations — before the trial got adjourned.
  • She’ll wait 3 months for the trial to continue in June 2018, and she may have to wait even longer for a verdict.
  • It’s unclear when her trial will end.

Justine, who is a member of the Siksika Nation, wants the trial to continue as soon as possible. “My children are young, their culture has been taken, and there’s possibilities of them being abused,” she told The Discourse in an interview.

In B.C., many parents whose kids are deemed in need of protection by the Ministry of Children and Family Development have to play this kind of waiting game.

The ministry applies to permanently remove about 700 kids from their families every year in B.C. Not all these cases will go to trial; sometimes parents and social workers resolve their concerns through mediation. But for the cases that go to trial, lawyers say they’re slow to begin and often interrupted — with months in between court dates — while families like Justine’s remain separated, sometimes for years, the kids living in temporary foster placements or with extended family, and the parents kept at bay. Visits are limited and often supervised.

It’s still unclear exactly how long Justine’s trial will take. It might stretch beyond June if the lawyers can’t get through all their witnesses in the additional seven days that have been set aside for it. This ambiguity is taking its toll on Justine.

“When I’m out in the community I look like I’m happy,” she says. “But I’m really good at pretending. You know, deep down I’m so broken.”

“I can’t imagine what my girls are feeling if I feel like this.”

Child-protection trials consistently delayed in B.C.

According to the B.C. Provincial Court’s own data, the court is consistently missing its own targets for hearing child-protection cases in a timely manner.

Key facts about child-protection trials in B.C.

For complex trials like Justine’s, which are expected to last at least five days, the court aims to start hearing the case within six months once it’s decided that a trial is needed. But the court estimates that these cases are routinely taking nearly eight months to get to trial. In Justine’s case, it took 19 months.

While we know from an earlier investigation by The Discourse that these trials are slow to get started, what we don’t know is how long it takes, on average, for child-protection cases to move through the court once a hearing gets underway.

Last fall, The Discourse asked the B.C. Provincial Court for this information. A spokesperson replied by email: “The actual average length of a child protection case (i.e., from first appearance to last court order) is not data that is currently collected by the court.”

When asked in April 2018 if that’s still accurate, a spokesperson corrected the court’s earlier statement: “The Court would like to clarify that ‘the actual average length of a child protection case (i.e., from first appearance to last court order) is not data that is currently reported on by the Court’” (emphasis theirs).

The Discourse has requested the data that’s collected and, at time of publication, is still waiting for the court’s reply.

Lawyers say delays are getting worse

Lawyers who work on child-protection cases say these trials seem to be taking longer than they used to.

“The problem has gotten significantly worse over time in B.C.’s Provincial Court,” says family lawyer Brenda Muliner.

“I’ve been dealing with child protection cases at least 15 years now,” says Muliner, who represents parents in smaller B.C. cities and communities like Kamloops, 100 Mile House, Williams Lake, Lillooet and Merritt.

“I would say there’s trial delays in almost all of them,” she says.

She points to a trial she’s been working on in Williams Lake, which she says took at least eight months just to schedule. The trial began in September 2016. After several days in court, it was adjourned until the next available court dates — in July 2017. They lost those court dates because of the wildfires that ripped through Williams Lake that summer. And so in August 2017 they picked up where they left off, but again, they didn’t finish the trial. It was adjourned until January 2018. And the verdict’s still not in.

Muliner’s guessing the trial won’t finish until at least August 2018, nearly two years after it began. Meanwhile, the Indigenous family remains separated, the two children in foster care.

“I think it’s something that causes not only the family, but the extended families, as well as … the First Nations community — I think they all feel stress,” she says. “Particularly parents.”

Susanna Hughes says she’s hearing anecdotally from lawyers on both sides of the courtroom that it’s taking longer than ever for the B.C. Provincial Court to hear child-protection cases from start to finish. She’s been a lawyer since 1990, and she’s reviewed many child-protection cases since she started working at B.C.’s Legal Services Society in 2015.

Hughes says delays are “much more common” in smaller B.C. communities (like Williams Lake), where courts don’t sit as often, and they can be especially hard on families that are temporarily separated by long distances. Sometimes a child is placed in a foster home that’s far from their parent’s place.

“Frequently the parent isn’t getting an awful lot of access with their child,” she says.

Kids competing with alleged criminals for court’s attention

In B.C.’s Provincial Court, finite resources like judges, clerks and courtrooms must be shared among different kinds of cases. Sometimes child-protection cases get bumped so the court can hear criminal cases, which have hard deadlines to prevent unreasonable trial delays for people accused of committing a crime.

“We frequently get bumped by criminal cases because … if they’re not processed in a certain time, charges get dropped,” Muliner explains.

In B.C., courts are dealing with a spike in both adult criminal and child-protection cases. According to the Court’s latest annual report, “adult criminal and child protection cases are at their highest levels in the past five years.” The number of new child-protection cases has grown by 23 per cent since 2012, from fewer than 9,000 cases to nearly 11,000.

In Williams Lake, lawyers say child-protection trials are frequently adjourned, so the court can hear criminal cases — which have hard deadlines (as per the Supreme Court’s decision in R. v. Jordan.)

In Williams Lake, Muliner says child-protection cases are not getting the court time they need. “What happened is a judge moved on or retired and they didn’t bother to fill the vacancy [for] years,” she explains. “So that’s created a substantial backlog.”

Muliner blames the B.C. Liberal government and then-Attorney General Suzanne Anton for failing to fill the vacancy at the time, which has resulted in ongoing delays.

“That was a very poor decision by the Attorney General,” she says. “Were they thinking that the cases were just going to go away?”  

Though Anton is no longer sitting in the B.C. legislature, The Discourse attempted to contact her several times via email and Twitter to request an interview, but didn’t receive a reply by deadline.

Delays hurt families more than they help them, lawyers say

The Discourse spoke to some lawyers who suggested, off the record, that long delays can be good for parents who need time to complete court-ordered programs like addictions treatment or parenting courses.

But Muliner, who spoke with The Discourse on the record, estimates parents only benefit from long waits “in about five or 10 per cent of the cases” she works on.

“It’s usually to the [ministry] director’s advantage when cases get dragged out,” she adds. “Things could get worse for parents because they get depressed about the length of time. It compounds problems such as drinking, drug abuse.”

When a trial drags on for years, “it’s downright disheartening” for the parents, she says, later adding that the stress of delays can affect the children as well.

Ultimately, says Hughes, these delays can hurt a family’s chances for reunification.

“That bond is being broken day by day when the child is away from the parent and so the longer it takes to reach a resolution the less bonded that child is with the parent, particularly if they’re not seeing them very much,” she says. “It can be very traumatic.”

What’s the B.C. government doing to curb delays?

A 2010 report from the B.C. Provincial Court, called Justice Delayed, found the court lacked the resources it needs to hear all the cases that come before it in a timely manner.

Eight years later, Muliner and Hughes say these concerns are still valid.

The report also noted that parents who are waiting for a hearing because their children have been apprehended “have no means of compelling their case to proceed in a timely way” and “have no recourse if the court fails to do so.”

The report urged the B.C. government to allocate more resources to the court to ensure that cases are heard in a more timely manner.

According to the Provincial Court Act, the Attorney General is “responsible for the provision, operation and maintenance of court facilities and services.” So on April 20, The Discourse requested an interview with David Eby, B.C.’s new attorney general. The Discourse followed up several times, hoping to ask Eby if the current government, led by the NDP, will allocate more resources to the Provincial Court. By April 26, the Minister’s office had yet to confirm an interview time, so The Discourse decided to publish this story without his comment.

The B.C. government has just proposed changes to child-welfare legislation which could potentially have implications for these trial delays. The bill, announced on April 24, proposes to amend the Child, Family and Community Services Act, so that Indigenous communities will have “greater involvement” in child-welfare cases. The Discourse will be investigating these proposed changes and asking whether families can expect their cases to move more quickly through the courts as a result.

More from this series:

An Indigenous mom’s fight to get her kids out of a foster care system she calls biased

Trauma or not, this Indigenous mother’s unfit, ministry tells court

Psychologists are using biased tests to assess Indigenous parents, experts say

Government witness ‘not qualified’ to testify in child-protection trial, judge rules

When your child-protection trial is “To Be Continued…”

Judge asks: Should a mother lose her kids because she challenges the foster-care system?

B.C. judge breaks with convention in Indigenous child-protection case

B.C. Human Rights Tribunal will hear Indigenous mother’s case against child-welfare agency

This Indigenous mom’s two-front fight might be gaining ground


Justine’s trial is scheduled to resume on June 11, 2018, in Robson Square Provincial Court in Vancouver. Follow Brielle’s coverage of the hearing (hashtag #MomOnTrial), and subscribe to her bi-weekly newsletter for more on this developing story.

This piece was edited by Robin Perelle, with fact-checking and copy editing by Jonathan von Ofenheim. Discourse Media’s executive editor is Rachel Nixon.

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