May 2, 2016.
A class action law suit, that claims from 1985 to 2009 the province took thousands of children and then illegally retained them, is a step away from certification.
“You can’t take somebody’s child without following the law, whether you’re a neighbour, a stranger or the government,” said lawyer Robert Lee, whose firm began the class action. “The only way (Alberta) child welfare can take a child away from the parent is if they follow the law and if they take a child from a parent without following the law, to me, that’s kidnapping.”
At the core of the matter is the claim that the government did not follow its own legislation after apprehending children. From 1985-2004, the Child Welfare Act required social workers to prepare and file service plans in court within 30 days of apprehending a child. In 2004, the Child Welfare Act was replaced by the Child Youth and Family Enhancement Act, which did away with the requirement of filing service plans in court, instead requiring social workers to develop concurrent planning within 42 days of apprehending a child. Concurrent planning meant establishing a service plan to reunite child with family, or, failing that, a service plan to find alternate care for the child. In 2008, the Child Youth and Family Enhancement Act was amended removing the obligation to prepare concurrent plans. The Child Welfare Service Plan Class Action claims that the government failed to follow its own legislation by allowing temporary guardianship orders, under which the children were initially claimed, to expire but still holding on to the children without court orders.
“If the TGO has expired, especially by reason of the Department failing to follow legislated procedures, it is certainly arguable that children were kept in government care without lawful authority,” said Alberta Court of Queen’s Bench Justice Robert A. Graesser in his 76-page ruling released on March 14.
The issue surfaced, says Lee, following two Alberta Court of Appeal cases in 2002. In both, the central issue was the failure to file a plan for care under the Child Welfare Act. Lee says he was contacted by multiple families after those cases and, because handling each matter individually was impossible, he decided to proceed with a class action.
In his decision, Graesser called attention to a March 8, 2002, email sent by Darryl Bertch, acting manager of child welfare resources of the Ministry of Children’s Services, in which he requested a list of non-compliant TGOs. He was told 539 TGOs were invalid, impacting 332 families.
Lee says it’s reasonable to assume that figure of 539 is a fair representation for every year from 1985, when the act was brought in, to 2002, representing the number of children whose service plans were not filed in court. That means as many as 8,000 children could have been impacted. The government has not yet supplied figures up to 2009, says Lee, but if that stands at 500 each year, as well, that could be another 3,500 to 4,000.
The Child Welfare Service Plan Class Action also seeks compensation for the parents, who had their children illegally retained by the province.
Lee has no specific numbers as to how many Aboriginal children or families could be impacted, but as of March 2016, 69 per cent of all children in provincial care were Aboriginal.
“I’d say at least that and probably higher because of just how poorly the system treats Aboriginal families,” said Lee.
Lee is only now starting to collect names. He says it is difficult for children and parents/guardians to find out on their own if a service plan was filed or concurrent plans developed. He is directing people to his website (victimsrightslaw.ca) to fill out a questionnaire giving him permission to seek records in order to determine whether or not they are part of the class action.
Graesser has noted a number of next steps “before there can be any formal certification order,” including the province and Lee determining the common issues. Graesser says those who do not fall within the parameters of the claim – people pre-dating the Child Welfare Act and after 2009, and those affected by orders other than TGOs during that same time frame – must be notified.
Lee says talking compensation is still “far away.”
“One of the big problems of it, to me, is how it makes these families and these children feel like second-class citizens. ‘The government doesn’t have to follow the law. The law doesn’t protect me….’ That makes a person feel like a second-hand citizen which really affects their self-esteem. And that to me is so important,” said Lee.
Spokesperson for Alberta Justice and Solicitor General says the process is in its early stages and the department would be offering no comments at this point.