Pubdate: Sun, 22 Oct 2017
Source: Toronto Star (CN ON)
Copyright: 2017 The Toronto Star
Authors: Rachel Mendleson and Andrew Bailey
Page: A9


Analysis of 50 cases sheds light on how people often suffering from
poverty or other disadvantages were tarred by test results indicating
that they were drinkers or drug users

In an Elliot Lake, Ont., courtroom in 2011, a woman fighting for
custody of her step-grandchild tried to convince the judge that
Motherisk's results were bogus.

The Children's Aid Society of Algoma had submitted Motherisk's tests
of the woman's hair, which were positive for cocaine and opioids, as
proof she had recently used drugs. The woman, identified by the court
as L.G., argued the lab must have miscalculated because she had been
clean for several months. The judge was not swayed.

"Ms. L.G.'s explanation for the hair follicle testing and the results
of those tests is, in part, to challenge the very science of that hair
testing," the judge wrote in his decision. "Hair follicle testing
occurs with regular frequency in the Province of Ontario and is relied
upon by this court and other courts throughout the province. There is
no evidence before this court . . . that would effectively challenge
that science."

The case is one of 50 child protection proceedings involving drug and
alcohol hair-strand testing that were reviewed in a Star/CBC
investigation into the largely hidden corner of the justice system
where the Motherisk scandal festered. For more than two decades, in
family courts across Canada, judges accepted Motherisk's faulty
evidence, praised the lab's untrained experts and disbelieved parents
who lacked the means to adequately challenge damning results that
influenced decisions that tore their families apart.

The hair-testing in eight of the cases was conducted at private labs;
42 cases involving 65 children relied in some part on hair tests
performed at Motherisk. Ninety-three per cent of those 42 cases
included at least one positive result. Although an adult seeking
custody denied the positive results in 67 per cent of the cases, only
14 per cent presented competing forensic evidence, such as urine
screens or hair tests performed at a private lab. Almost always,
judges favoured the hair tests from the Hospital for Sick Children.
Motherisk's results were accepted in all 34 cases that predated the
start of Motherisk controversy, in late 2014.

Motherisk's hair tests, which were deemed "inadequate and unreliable"
for use in court by a government-commissioned review in December 2015,
informed everything from orders mandating the supervision of children
by authorities to decisions making children Crown wards without access
to their parents. Along the way, positive results eroded the
credibility of parents who disagreed with the findings.

"One of the difficulties with this kind of evidence is that it has a
corrosive effect through the whole case," said Rollie Thompson, a
family law professor at Dalhousie University and former head of
Dalhousie Legal Aid, where he represented parents in child protection

"It affects judgments that the ministry makes about what cases it goes
ahead with and how hard they push them. It affects how much the legal
aid lawyer trusts the parents," he said. "That's the insidious effect
of this stuff."

As the Star has previously reported, Sick Kids missed the warning
signs with Motherisk, a national tragedy that has left governments
across the country struggling to right wrongs that can't be undone.

This is how Motherisk's flawed forensics infiltrated the


The Star/CBC review is based primarily on publicly available court
decisions that have been sanitized to remove identifying information
and posted online. The analysis captures only a sliver of the
thousands of child protection cases involving Motherisk because many
decisions and final orders in child protection proceedings are not
publicly available.

But the sampling is a window into the socio-economic challenges facing
families who submitted to hair testing in their fight to keep their
kids. Ninety per cent of case histories included some mention of at
least two of the following: substance abuse; domestic violence;
poverty/unemployment; criminal/police involvement and prior
involvement with child protection. Four of those factors were
mentioned in 54 per cent of cases.

"It's not like . . . we (were) randomly going through Rosedale and
pulling people's hair out" for testing, says Nicholas Bala, a family
law expert at Queen's University, referring to the affluent Toronto
neighbourhood. (Bala was consulted in the review of Motherisk by
retired judge Susan Lang, who was appointed by Queen's Park in late
2014 and probed a decade's worth of the lab's hair tests.)

These disadvantaged parents faced a formidable opponent in Motherisk.
Trading on the reputation of Sick Kids, the lab actively marketed its
hair tests, offering preferential rates to child protection agencies
and holding speaking engagements across the country. Lab manager Joey
Gareri also gave presentations to members of the legal community,
according to his C.V., obtained by the Star/CBC, which lists a crime
conference for Ontario Provincial Police in Orillia in 2007, a "lunch
and learn" for family lawyers in Durham in 2011 and a seminar on drug
testing at the Ontario Court of Justice in Thunder Bay in 2013.

"Child welfare agencies, hospitals and law firms throughout North
America rely on Motherisk's testing expertise, technology and
support," stated a promotional brochure. The brochure, which was
distributed to children's aid societies in Ontario, boasts that
Motherisk's "world renowned team" has "extensive experience as expert
witnesses in family and criminal court."

Phyllis Lovell, executive director at Bruce Grey Child & Family
Services in Owen Sound, said Motherisk's hair tests had "enormous
appeal" because "it was the addition of science to the study of human

Unlike urine or blood tests, which can only detect short-term drug and
alcohol use, Motherisk's hair tests held the promise of tracking
longer-term consumption. Because hair grows at a rate of roughly one
centimetre per month, the lab said its tests could also pinpoint the
specific timeframe. (Although some experts argue that the science of
drug and alcohol hair testing is valid, Lang found Motherisk's methods
fell far below international forensic standards.)

When faced with making tough calls about how to keep children safe,
children's aid workers saw the hair tests as an objective factor,
Lovell said.

"We thought the science was reliable and we particularly thought that
Motherisk, Sick Kids hospital, was an institution, was a service that
we could absolutely count on," she said. "We trusted the hospital and
the (lab) and we invited parents to trust us. It turns out that that
trust was misplaced."

It is likely no coincidence that the Motherisk controversy was sparked
by questions raised in a criminal case as opposed to family court,
where risk to children is assessed on the balance of probabilities
rather than proof beyond a reasonable doubt. (Criminal proceedings are
also much more public.)

In family court, Motherisk's results often went unchallenged and were
almost as likely to be relayed to the court by social workers, as
opposed to the lab's experts, who only testified in 45 per cent of
cases. (Forty-three per cent of cases did not include testimony from a
Motherisk expert, while the available documents in the remaining 12
per cent did not specify how the lab's results were presented.)

In our review, the Motherisk expert who testified most often was lab
manager Joey Gareri, despite the fact that he had no forensic
training, as Lang found. Yet Gareri impressed a Superior Court judge
in Cobourg in 2008, who praised him for being "competent, professional
and understandable." He also won esteem in the Supreme Court of Nova
Scotia in 2014, where the judge found him to be "credible and
reliable" and "knowledgeable about the subject matter."

When interviewed by Lang, Gareri said that he "learned 'on the job' on
a job that you should not be learning on," according to her report,
but he continued testifying in court, appearing in two child
protection proceedings in Sydney, N.S., in January 2015, the Star/CBC

Gareri, Sick Kids and Motherisk founder and longtime director Dr.
Gideon Koren are named as defendants in at least 11 individual
lawsuits related to the problems at Motherisk. Citing ongoing
litigation, Gareri declined to answer questions for this story,
telling a reporter who found him at his Scarborough home: "I'm sorry.
It's got to go through the legal system. I don't have any comment."

In the face of a positive hair test from Motherisk, judges in several
cases remarked that the onus was on the parent to present competing
evidence. However, in the vast majority of child protection
proceedings, Motherisk's tests were "effectively impossible to
challenge," Bala says.

Those who did succeed in countering the lab's results did not emerge

Mental health concerns, questions about parenting ability and unstable
housing were among the factors in the case of Angela, an Ontario
mother who was labelled a chronic alcohol abuser by Motherisk in 2009,
during her battle to regain custody of her two daughters.

The results shocked Angela, not her real name, who said in an
interview that she was "never a drinker" and "adamantly denied" the
findings of several subsequent Motherisk hair tests, which returned
the same result.

"I always swore when I had my kids that I would be there for
everything . . . It almost killed me because there was nothing I could
do and it wasn't my choice not to be there," she said. "I just wanted
to crawl in a hole and never come out."

Access to her girls, who were 9 and 13 when they were removed, varied
as they bounced in and out of care. During the worst of it, Angela's
younger daughter, who we are calling Jenna, estimates she was shuffled
among nine placements over the course of a year.

"I tried not to unpack my bags if I didn't have to because a lot of
the time when we did move we didn't have notice that we were moving,"
Jenna said. "Because of how often I moved, I didn't feel like anyone
wanted me. I missed feeling wanted."

Their ordeal finally ended three years later, in early 2012, after
Angela presented competing evidence - three months of negative results
from an ankle bracelet monitor that measures alcohol consumption
through the skin, performed during the same 90 days as a Motherisk
hair test.

In a letter to Angela's lawyer, Gareri indicated that in this
instance, Motherisk had done two types of alcohol hair testing. While
the results of the first test, called FAEE, suggested "binge alcohol
consumption," this was ruled out by the second hair test, called EtG,
which was negative, as well as the negative ankle monitor results.

"In the absence of any reliable additional supportive evidence (e.g.
eye-witness accounts, smell of alcohol on breath, etc.); provide no
clear reliable evidence of alcohol use during the tested time period,"
he wrote. He acknowledged the results of FAEE tests "can be falsely
elevated in hair by frequent use of ethanol-containing hair-care
products." Angela suspects this happened in her case.

Three days later, the children's aid society ended its

By then, Angela's oldest daughter had turned 17 and already returned
to her mom's, after she learned she was pregnant while in care. Jenna,
then 13, came home with crippling anxiety.

If Angela would go to the laundry room to have a cigarette, Jenna
would be on the other side of the door, waiting for her to finish.
When her mom used the bathroom, she would sit on the stairs nearby.
For months, she refused to go out.

Jenna, whose family is among those who have launched lawsuits, said:
"I fell behind in school and I fell behind socially, which is why now
I have social anxiety and social phobia. I can't hold a job in a
public place."


Nearly two years after Lang's report confirmed the problems at
Motherisk, holes in the system remain. The Ontario government is
planning legislation this fall that would require labs that perform
forensic testing to have forensic accreditation to make sure the
evidence meets international standards. But no province currently has
such legislation in place, a national survey of governments across
Canada by the Star/CBC found.

Some form of drug or alcohol testing in child protection continues in
at least seven provinces. Hair testing is still used in Alberta and
Manitoba, neither of which relied on Motherisk. In Manitoba, a
spokesperson said drug testing labs "must be certified by the U.S.
Department of Health and Human Services," but did not clarify whether
they were forensically accredited.

A spokesperson for the Alberta's Children's Services Ministry said
labs that perform the hair tests "adhere to the standards" of the U.S.
Substance Abuse and Mental Health Services Administration (SAMHSA) and
the Department of Transportation, but did not respond to further
questions about whether they have forensic accreditation. Following
inquiries from the Star/CBC, another ministry official, Aaron Manton,
said in an email late Thursday that "Alberta is planning to phase out
the use of hair testing in child protection cases.

"We will be communicating this to our service delivery regions in the
coming weeks," Manton said.

In Ontario, the way the child welfare system currently intersects with
the medical system and the courts makes it "complex" for some agencies
to end the practice of drug and alcohol testing, according to Caroline
Newton, spokesperson for the Ontario Association of Children's Aid
Societies (OACAS). But Newton said the OACAS recognizes there are
"serious concerns" about the reliability of the testing being done in
Ontario labs and is supporting "all efforts . . . to end the practice
of overreliance on forensic testing."

Lang said she hopes the central message in her report about the
dangers of flawed forensics "resonates all over Canada."

"A lot of people did not see family law as forensic work. They just
(thought), 'Oh if it's probably so, then fair enough,' " she said.
"Well, that isn't good enough."
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