Pubdate: Fri, 20 Oct 2017
Source: Toronto Star (CN ON)
Copyright: 2017 The Toronto Star
Author: Rachel Mendleson
Page: A1


Once-respected Sick Kids lab performed tests for more than 100 child
welfare providers in five provinces, an investigation reveals. For
families who have been torn apart, the fallout is a 'tragedy'


In British Columbia, a mother is desperate to convince the children
she lost years ago that she didn't choose drugs over them.

In Nova Scotia, a 7-year-old girl prays for her brother, who was
adopted into another family.

And in Ontario, a mother whose daughters were taken shortly after they
were born is waiting for a reunion that may never come.

For more than two decades, in thousands of cases across Canada, flawed
drug and alcohol testing from the Hospital for Sick Children's
Motherisk lab influenced high-stakes battles over whether to remove
children from their families.

Child welfare agencies in five provinces paid for Motherisk's
hair-strand tests, believing the results were hard evidence of
substance abuse.

In fact, Motherisk's results were faulty opinions, devised by
scientists who operated without oversight or forensic training yet
testified as experts in family and criminal courts as far afield as
Colorado. The sterling reputation of Sick Kids and the promise of a
simple, concrete answer in difficult cases obscured the warning signs
that were there from the earliest days.

A joint Toronto Star/CBC investigation reveals, for the first time,
the scope and impact of a tragedy that was experienced across Canada.
The lab's client list, obtained through freedom of information
legislation, and an analysis of court records show Motherisk performed
tests for more than 100 child welfare providers in British Columbia,
Ontario, Quebec, New Brunswick and Nova Scotia.

At least four of these provinces continued to rely on the tests after
2014, when the Star first sounded the alarm on the lab after its
results were challenged in an Ontario appeal court. Even after the
Ontario government released a report in December 2015 that determined
Motherisk's evidence was "inadequate and unreliable" for use in court,
New Brunswick and Nova Scotia persisted in using hair testing to help
decide whether children should be permanently removed from their
parents' homes. Journalists from the Star and CBC's The

Current and The Fifth Estate interviewed families, reviewed more than
40 child protection cases that relied on Motherisk's testing, and
surveyed provincial governments about their responses to Motherisk's
failings. So far, only one province, Ontario, is providing counselling
and legal support to affected families. None are offering financial
compensation. "Losing your child is the capital punishment of child
protection law," said retired judge Susan Lang, who wrote the
government-commissioned report on Motherisk. "You need to have these
test results done right."

In a recent interview, she called the fallout "a tragedy."

"I suppose the best that any of our families can hope for is ongoing
contact between parent and child," she said. "I wish I could wave a
magic wand and make it all happen, but I suspect that we cannot do

Dr. Gideon Koren, the founder and former director of Motherisk who
retired from Sick Kids during Lang's review in 2015, still speaks at
medical conferences around the world. This month, he was a panellist
in Windsor, England, near London. A crowd of 50 listened as Koren, who
now works in Israel, spoke about hyperemesis gravidarum, a severe form
of morning sickness, in a room overlooking the Royal Windsor
Racecourse, favoured by the Queen.

Koren's smile faded when he was approached by a reporter who asked
about the problems at Motherisk.

"I will not answer. Under legal instructions, I cannot talk about
that," he said, before exiting down a back stairwell. The mother in
B.C. wants answers. The woman, who is identified as Lisa, a pseudonym,
to protect the identity of her children, said, "I lost my whole life
over those tests."

Her two daughters were placed in permanent care 11 years ago, partly
the result of Motherisk testing, which showed she had recently used
methamphetamine, a finding she denied. Although there were other
factors in her case, including allegations of neglect, she believes
the hair testing was the linchpin.

"I didn't even have an identity outside of being a mother," she said.
"I didn't know who I was or where I was going when they took my kids
away from me. I tried to commit suicide more than once.

"I felt I was this horrible person. I wasn't capable of having
children or being around people. I just didn't think I was human."

The Motherisk scandal emerged in late 2014, after an expert witness
challenged the reliability of the lab's evidence in the case of a
Toronto mom convicted in 2009 of repeatedly feeding her toddler
cocaine, leading to a near-fatal overdose. The criticisms of Motherisk
led the Ontario Court of Appeal to toss Tamara Broomfield's
cocaine-related convictions. But it wasn't until the spring of 2015,
after Sick Kids had shuttered the lab during Lang's review, that
provincial governments addressed the use of hair-strand testing. The
responses varied widely.

That April, Ontario instructed child welfare agencies to stop relying
on the testing in "ongoing and future" child protection cases. A month
later, British Columbia, where 8,000 newborns and adults underwent
Motherisk testing between 1997 and 2015, imposed a moratorium on hair
testing for child protection cases.

Almost a full year later, in March 2016, New Brunswick issued a
similar order. There, according to information released by Sick Kids,
between1,100 and1,400 individuals had their hair tested by the
Motherisk lab. Nova Scotia, where an estimated 750 to 900 individuals
were tested, stopped relying on hair testing in April 2016, four
months after Lang's final report was released.

That was too late for a Nova Scotia mother and father who were in the
final throes of a battle to keep their family together.

The parents, who we are calling Fred and Julie, had a history with
child protection, according to court rulings. The primary concerns
were their volatile relationship and allegations of substance abuse,
which were confirmed, in part, by Motherisk testing.

Two of their children - a girl, 3, and a boy, 7 months - had been
living with their paternal grandmother when the kids were apprehended
in July 2013. A child protection worker alleged Fred had violated a
court order prohibiting him from being in the house at night and that
there was a "physical altercation" between Julie and the

The ministry moved for permanent care in separate trials. The parents
lost the first trial, concerning their son, in June 2014. Fred, who
was seeking sole custody, had recently produced a clean Motherisk
test. But the judge noted that previous Motherisk testing showed
"active, intensive and frequent" cocaine use, which reflected the
"lack of honesty" of Fred, who characterized his past use as

By the time their daughter's case got to court in December 2014,
Lang's review of Motherisk was underway. This time, Fred, again
seeking sole custody, presented hair tests from a forensically
accredited lab in the U.S., which came back negative for cocaine. He
got his daughter back.

In that May 2015 ruling, the judge said she assigned "no weight" to
the news that Ontario had stopped relying on Motherisk testing.
Instead, based on the test from the independent lab and other evidence
about the father's lifestyle, she concluded he had not used cocaine
since September 2013, despite several positive Motherisk tests showing
very low concentrations of the drug during this period.

Fred then filed an application to terminate the permanent wardship
order for his son, but was told it was too late. He tried to get a
judicial review but his application was found to be outside the
court's jurisdiction. The boy's adoption was finalized in June 2015, a
month after the decision in his sister's case.

After Lang's report was released, the parents petitioned the province
to review their case. They were told only that the review request had
been granted but have not received further information.

The Nova Scotia Community Services Department declined to comment on
the case. A spokesperson said the department had received only one
request to review a child protection file involving Motherisk,
"resulting in no change to the original decision." As far as the
province is concerned, they are not getting their son back.

Fred and Julie are suing Sick Kids, Koren, lab manager Joey Gareri and
the Nova Scotia government - two of the estimated 275 named plaintiffs
in at least 11 lawsuits related to Motherisk. In their statement of
claim, they allege the province exercised "tunnel vision" and "failed
to consider strong evidence . . . surrounding the accuracy and
reliability of the evidence provided by the Motherisk laboratory and,
instead, sought to suppress it."

In an interview, Fred said, "It's torn me apart . . . because that's
my son, and that's my daughter. They're not together when they should
be together. Every day, I think about that."

The mother, who was granted access to her daughter, said the
7-year-old collects toy cars for her brother, and mentions him in her
nightly prayers.

"She'll ask God to hurry up and let (him) come back home," she

In its statement of defence, the province argued Motherisk's tests
were "but one item of evidence" in the case, which had been decided in
a fair trial, in a decision that had not been appealed by the
legislated deadline. Sick Kids and Gareri, in a joint statement of
defence, argued that "any losses, damages, injuries or harm allegedly
suffered by the plaintiffs were caused entirely by their own actions."

Koren, in his statement of defence, said Motherisk's hair tests were
"accurate and reliable for their intended purpose" to "provide
information relevant to the medical care and safety of children," and
maintained that "any loss of custody or visitation rights (in this
case) would have occurred regardless of the hair tests."

Koren is also the subject of an investigation by the College of
Physicians and Surgeons of Ontario. The research arm of the Motherisk
Program he founded in 1985 to provide drugsafety advice to pregnant
women is still operational.

Sick Kids has never released complete details on the number of court
cases that relied on Motherisk's hair tests. Citing ongoing
litigation, the hospital refused to answer questions for this story.
Individual governments conducting reviews of affected child protection
cases declined to share any tallies that may exist, despite repeated

Even in Ontario, the total is unknown; Lang's review found that
roughly 16,000 individuals had their hair tested by Motherisk at the
request of 43 child welfare agencies from 2005 to 2015. (Of those,
more than 9,000 individuals tested positive.)

However, the Star/CBC investigation indicates Motherisk cast a long
shadow, conducting at least 35,000 tests on 25,000 individuals across

The lab's client list shows Motherisk performed testing for 46 child
welfare providers in B.C. from 2007 to 2015, including several serving
Indigenous communities.

In Quebec, the client list includes the Batshaw Youth and Family
Centres in the Montreal suburb of Westmount, the strongest evidence to
date that the results were used in child protection proceedings in
that province. (Batshaw declined to comment, citing confidentiality
issues.) As the Star has previously reported, Motherisk gave evidence
in a 2013 criminal case in Quebec, but the testimony did not affect
the guilty verdict.

In at least one instance, Motherisk's evidence was given in the U.S.,
where former lab manager Julia Klein testified in 1993, in a pretrial
hearing for a murder case in Colorado, according to a transcript of
the proceeding obtained by the Star/CBC. The hearing exposed the same
failings that were identified by Lang, including that Motherisk fell
short of forensic standards and did not confirm preliminary results
with a gold-standard test. It is the only known case in which a judge
threw out Motherisk's results before the controversy emerged more than
20 years later.

In Ontario, a government committee reviewed seven criminal cases, six
of which resulted in convictions. Attorney General Yasir Naqvi refuses
to identify the cases, citing privacy concerns, although all are on
the public record.

In an interview, Naqvi said that outside of the Broomfield case, the
review identified only one conviction where there were "serious
concerns" that Motherisk testing "played an important role." He said
the "affected parties" have been informed and "given access to legal

The Star/CBC has confirmed that case involves a father who, like
Broomfield, was convicted of feeding his young son drugs - in this
case, OxyContin - based on Motherisk's hair tests. The father, who, to
protect the identity of his son, can't be named, was sentenced in
Barrie in 2008 to six months in jail. He died after his release.

The reviews of child protection cases vary widely, from Ontario's
$10-million Motherisk Commission, established in January 2016 to probe
cases and offer counselling and legal aid funding, to Nova Scotia,
where the framework has not been finalized. (Quebec has not answered
questions about hair testing or whether it will probe affected child
protection cases.)

Whatever the parameters, it's an inherently imperfect process that
involves untangling a web of factors that influence custody decisions.
And with Motherisk, there is also no chance for exoneration: The lab's
analyses were sloppy but not necessarily incorrect, and samples were
not retained for retesting. Those who believe they were wrongfully
branded drug addicts and alcoholics and lost their children will never
be able to prove it.

Legal remedies will be hard fought, and in many cases unsatisfying,
for the reason that once finalized, adoptions are virtually impossible
to disrupt. Rollie Thompson, a family law professor at Dalhousie
University, explains that the difference between overturning criminal
cases and child protection matters is that "the wrongly convicted
criminal gets out of jail."

"Children's lives move on, so that you can't reverse it," he said.
"You can't let them out of permanent care and put them back with their
parents. You can't rewrite history."

In Ontario, where the Motherisk Commission expects to review roughly
1,200 files during its twoyear mandate, the probe has identified 50
cases where Motherisk's tests had a substantial impact. So far, there
are only six cases where parents and children have reunited in some

Commission counsel Lorne Glass said one of the challenges is that
"there are lots of cases where adoptive parents don't want to have to
deal with openness, no matter what that openness really

"Where a child still has access with a parent, the chances of a
reunification is a lot greater," he said. "Where a child's been
adopted . . . and has not had any contact with a parent for many
years, the chances of a reunification are slim." (The commission has
drawn criticism for not looking at all affected files, but Glass, who
is also reviewing select cases that relied on hair tests performed in
private labs, says he believes the review will capture the cases where
children have been permanently removed.)

The success stories do not include an Ontario mother who lost her two
young daughters eight years ago following Motherisk's positive cocaine
tests, despite dozens of clean urine tests she produced before her

Heather, not her real name, was informed in April 2016 that the
commission found Motherisk's results had a substantial impact in her
case. However, she was upset by the letter she received from
Commissioner Judy Beaman that stated that Motherisk "was not the only
evidence supporting the decision." Heather believed it was.

"All they had to say is yes or no: Did the hair test play a role? . .
. To elaborate on that you're . . . judging something that you don't
have the complete information to make a determination on," she said in
an interview.

Heather was one of three mothers who launched an unsuccessful
application for judicial review of the commission last year, arguing
that the process should include public hearings and participation from
birth parents. A Toronto Divisional Court dismissed her application as
moot because the commissioner had rendered a positive decision in her
case, but she is no closer to reconnecting with her daughters. (The
court also said that because her daughters were previously involved
with children's aid, she could not be identified in media reports.
Heather is among the parents suing Sick Kids.)

In a letter to Heather's lawyer in June, Glass indicated that the
children's adoptive parents had been told of Heather's desire to
engage in mediation, which the commission is offering to fund as an
alternative to a court challenge, "but to date, they have not advised
us that they are prepared to participate in such a process," he said.

Glass declined to comment on individual cases, but in general, he said
the commission doesn't have "the authority to compel parties to
participate in any process," and noted that in cases where Motherisk
was found to have played a significant role, funding is available to
fight for reunification in court.

Heather said: "I don't know where my kids are. I don't know if they're
safe. I don't know if they're happy. My daughters have a right to know
where they come from. They have a right to know that they were loved.
They have a right to know they were wanted."

Susan Lang says Motherisk shows "these problems can happen

After all, despite a high-profile public inquiry in 2007 and 2008 into
the devastating mistakes of Sick Kids forensic pathologist Charles
Smith, whose flawed autopsy analyses tainted more than a dozen cases,
Sick Kids and the courts failed to see history repeating with Motherisk.

"You have someone who is positioned in a place where they can make a
difference . . . and who sees the work growing and takes advantage of
it, and is able to persuade children's aid workers, courts, judges,
lawyers, that they have the answer . . . it's something that everybody
wants," Lang said.

"There will be another time, there will be another issue. It's hard to
predict what it is, but the more transparency we all have and the more
understanding we all have . . . the better we might be able to raise
some red flags in the future."

Tomorrow: The U.S. case that should have been a red flag. Insight
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