Pubdate: Sun, 31 Jul 2016
Source: Toronto Star (CN ON)
Copyright: 2016 The Toronto Star
Author: Jacques Gallant
Page: A1


Women launch court challenge, saying commission meant to help them has
shut them out of process

Three mothers who claim that their children were removed from their
care as a result of faulty drug and alcohol hair tests at Hospital for
Sick Children's Motherisk laboratory have gone to court to call out
what they see as a lack of transparency at the commission set up to
review their cases.

The very people the commission was established to help want to see
everything the commission has seen when looking at their story.

The three argue in court documents that commissioner Judith Beaman, a
retired provincial court judge, and her staff have failed to allow
them to participate in the reviews of their cases. They want the
Divisional Court to order the commission to allow them to make
submissions to the commissioner and to hold hearings in their cases.

They also want to see the children's aid society files that may have
been consulted in the review of their cases, as well to get the
commission to order court transcripts from their child protection
proceedings to get a full picture of what role Motherisk hair tests
may have played in removing their children from their care.

None of the allegations have been proven in court. The women's lawyer,
Julie Kirkpatrick, declined to comment as the matter is before the
court. The commission also declined to comment.

"The Commissioner has failed to interpret her mandate correctly, has
erred in law, and has exceeded her jurisdiction by not conducting her
review in a way that places inadequate Motherisk testing in a factual
context through a fair, transparent and thorough process," argues part
of all three women's applications for judicial review, which were
filed in court last week. The applications go on to say that Beaman
has also failed to interpret her mandate correctly by "denying all
rights of participation to all affected parties, except for the
Children's Aid Society, in conducting a review."

The Motherisk Commission was established by the provincial government
earlier this year in the wake of a damning independent review which
found that the hair tests at the Hospital for Sick Children lab were
"inadequate and unreliable."

The tests were used in thousands of child protection cases across the
country. The independent review sparked by a Star investigation that
found that prior to 2010, Motherisk did not use what is considered to
be the "gold standard" hair test.

The hospital has since discontinued hair testing in the Motherisk lab,
and has apologized to individuals and families who may have been affected.

The commission's two-year mandate includes reviewing Ontario cases
from between 1990 and 2015 where Motherisk may have been involved,
either at the individual's request or on Beaman's initiative.

The commission's review and resource centre can offer individuals
counseling and, if Motherisk is determined to have played a
significant role in the outcome of the person's case, the commission
can also refer them to lawyers.

Those individuals can then explore the possibility of applying to the
courts to have Crown ward or adoption orders with respect to their
children set aside, for example.

Two of three women who have taken their case to Divisional Court have
publicly shared their stories in the past.

Christine Rupert, who specifically wants a public hearing at the
commission, told the Star in 2014 that her two children were removed
at birth and later adopted out.

(Beaman has said in correspondence with Rupert that the
Order-in-Council from government appointing her as commissioner does
not authorize her to hold a public hearing, according to court documents.)

Rupert's two children remained in foster care because, she claims,
Motherisk hair tests showed she was a heavy cocaine user - a finding
she has always fiercely denied and has gone to great lengths to disprove.

Beaman did conclude in her review in April that "although it was not
the only evidence supporting the decision, it is clear that the
results of the Motherisk testing were a significant factor leading to
the decision made in the case involving Ms. Rupert's children,"
according to an excerpt quoted in Rupert's application to Divisional

Rupert wants the court to quash that part of the conclusion, arguing
that Motherisk was the only factor in her children being made Crown
wards for the purpose of adoption.

Another applicant taking the commission to court is Yvonne Marchand,
who is also the lead plaintiff in a class action lawsuit brought by
law firm Koskie Minsky against Sick Kids and Motherisk's former
director and manager.

"For years, I would just cry and tell anybody who would listen that I
was a good mom, but people just think you're crazy," Marchand told the
Star earlier this year when the lawsuit was launched.

Marchand underwent a Motherisk hair test that wrongly showed she was
abusing alcohol, according to her statement of claim from the lawsuit.
None of the allegations have been proven in court. The statement says
Marchand then went for an independent test from an accredited lab,
which concluded she was negative for alcohol abuse.

But the judge at her court proceeding refused to admit the independent
test because the author of the test wasn't present, Marchand claims.

The lab's manager was in court, but Marchand, who represented herself,
didn't know how to qualify the manager as an expert in order to
testify, according to the statement of claim.

She claims the judge then relied on the Motherisk test result to strip
her of custody of her child, whom she said she now sees for a set
number of hours a week.

Marchand was told on June 1 that her file had been requested from the
children's aid society by the Motherisk Commission, but has not been
provided with any further information, according to her application
for judicial review.

She says that she also asked that the commission order transcripts
from her case, but has received no response.

The third applicant is a mother whose child protection case is ongoing
- - she is appealing a lower court's decision to make her child a Crown
ward without access.

After reviewing files from the children's aid society, Beaman
concluded in March that there was "no reasonable basis" related to
Motherisk hair testing to question "the legal process or existing
status quo" of the woman's child, according to the woman's application
for judicial review.

She wants the Divisional Court to quash that conclusion.

A Motherisk hair test showed that the woman and her child both tested
positive for cocaine and marijuana. The woman, who denies that she was
using cocaine, argues in her court application that the positive
cocaine test was the only reason that her child was apprehended by
children's aid.

The woman argues in her court application that the Motherisk
Commission relied on the ruling of the trial judge to make her child a
Crown ward without access, even though that decision is currently
under appeal.

The Provincial Advocate for Children and Youth, Irwin Elman, continues
to express concerns about the way the Motherisk Commission operates,
and told the Star in an interview that he believes the three women
raise questions that the commission should be considering.

Elman especially wants the commission to review every one of the
thousands of child protection cases that used a Motherisk hair strand

(The independent review that led to the creation of the commission
recommended that the commission should not look at every case as it
"would be a formidable, time-consuming, expensive, and impractical

"For young people or former young people, it might not be perceived as
a burden for someone to review their file," Elman told the Star. "For
young people who were or are in care, knowing the truth about what
happened to them might in fact be a remedy."
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MAP posted-by: Matt