GIST: "For the parents in a hard-fought Motherisk case that has highlighted cracks in the child welfare system related to the treatment of Indigenous families, the effect of delay and the reliance on flawed forensic evidence, hope of regaining access to their 10-year-old daughter has been all but extinguished. The Court of Appeal has overturned a decision that reopened the possibility of continued contact with the child, who has languished in legal limbo since she was apprehended in 2012, when her mother failed a flawed drug test from the Hospital for Sick Children’s Motherisk lab.
In a decision released on Friday, the Court of Appeal found Superior Court Justice Grant A. Campbell, who heard the first appeal in Kitchener, was wrong to overturn the trial judge’s “no access” order and “erred in his consideration of the child’s Indigenous heritage.” The parents say they plan to seek leave to appeal to the Supreme Court. “I want to be in her life. I want to be the influence. I want to be the protector of that child,” the father, who is identified by his initials, J.B., to protect his daughter’s identity, told the Star. Says the mother, C.T.: “I’m not giving up. I’ll never give up. She knows that we love her and she knows what we have.” The mother is among at least 25,000 people across Canada whose hair was tested by Motherisk before the lab was closed in 2015 and a government-commissioned review deemed the results “inadequate and unreliable” for use in court. The faulty results influenced thousands of decisions to remove children from their families in ways that are difficult to untangle and often impossible to reverse, as the Star has reported. In this case, the child was made a Crown ward without access to her parents in December 2015 following a long history with the Children’s Aid Society. In reaching her decision, the trial judge said she disregarded the positive cocaine hair tests from Motherisk, which had come under scrutiny, and cited other factors, including concerns about the mother’s parenting abilities and her mental health.  However, earlier this year, in a decision that attracted attention for its rare condemnation of the child welfare system and the courts, Campbell issued an apology to the parents, who he said had raised concerns about the Motherisk results and the child’s Indigenous heritage but were “ignored, demeaned and disbelieved.” The Motherisk results were not the only factor in the case, but as Campbell saw it, they influenced crucial decisions along the way, and “contributed to delay and the creation of a status quo” that eventually dictated the outcome. Campbell’s decision depicted a heart-rending dilemma: Although the child wanted both to be adopted and to continue to see her parents, the prospective adoptive mother said she would not proceed if there was an order for access. Based in part on the parents’ shared Indigenous heritage, Campbell concluded the child’s relationship with them should be preserved. He granted access but stayed its enforcement so there could be an openness hearing, which he said would offer the child a “slim” chance “to extract herself from this confusion, and move towards permanency.” Campbell also found that the mother’s trial lawyer provided ineffective counsel, and ordered her to pay $100,000 in costs. In a unanimous decision written by Justice Mary Lou Benotto, the Court of Appeal restored the “no access” order and overturned the costs order. The court found that Campbell was wrong to wade into questions of access and the conduct of the trial lawyer without first identifying an error on the part of the trial judge, and that the fresh evidence did not satisfy the “high threshold for ordering access,” because the adoptive mother’s wishes “would make the access order statutorily impossible.” Benotto went on to say that Campbell’s consideration of the child’s Indigenous heritage was based “on nothing but the parents’ self-identification with Indigenous heritage “There is no evidence that the parents had any connection to their culture; that the child was ever exposed to the Indigenous culture; or that anyone from the Indigenous community had ever been involved with the parents or the child,” she wrote. The court also dismissed the appeal of the parents, who sought a declaration that they suffered a miscarriage of justice and had their charter rights violated, concluding there would be “no utility to the remedy.” The case is among roughly 1,100 child protection files that have been reviewed by the Motherisk Commission, which was established in early 2016 to determine whether the flawed hair tests were a key factor in the outcomes in individual cases, as well as provide counselling and legal services. In April 2016, commissioner Judith Beaman informed the mother that she found “no reasonable basis related to the Motherisk hair testing to question the legal process or the existing status quo of the child.” The mother applied for a judicial review of the commission’s decisions, claiming the process lacked transparency and denied the parents an opportunity to participate, but a divisional court dismissed her application as premature, because she had not applied to the commission for reconsideration of its decision. Her new lawyer previously told the Star that her client would not do so because she “did not find the commission’s involvement to be helpful in her case.”

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