REMARKS OF CHIEF JUSTICE JOYAL
CHILD PROTECTION CONFERENCE
DECEMBER 2, 2016
Good afternoon everyone.
I know the organizers have created a full and comprehensive agenda with little time to spare, so I intend to be brief, but to the point.
It is both lamentable and somewhat incongruous that the Chief Justices of the Court of Queen’s Bench have had, over the last thirty-five years, comparatively little contact with the Family Bar, let alone those who specialize in Child Protection. So it is with pleasure and purpose that I attend before you today.
All of you here today, are highly skilled, dedicated and passionate professionals playing some role in the process that we conveniently call the “Child Protection proceeding”. That “proceeding” – stripped of its juridical sterility – is triggered by nothing more tragically human and real, and nothing less momentous and grave than the apprehension, by the State, of a child, from his or her family. That intrusion alone, by the State, creates a moral and constitutional imperative. It is a moral and constitutional imperative that should envelop everyone who has anything to do with a Child Protection file.
My purpose for being here today, is to confirm what many of you have already heard. Just as we have in the area of criminal and civil proceedings, the Court of Queen’s Bench is intending to present a new model of case flow and court scheduling that will purposefully and resolutely address the issue of delay in Child Protection matters. The planned improvements - to be administered by the Masters and judges of the Court of Queen’s Bench - involve the fixing of clear and prompt adjudication timelines for children under apprehension. The proposed model that will be explained in the weeks ahead, is a result of consultations and discussions amongst the judiciary, the bar, representatives of the CFS system, the Law Society and Legal Aid.
I can say from my various consultations, that what is clear for everyone, is that the current system more broadly, and the delays in the judicial system more specifically, need immediate and urgent improvement. Frustration is shared by everyone in the system, including, and especially, the judiciary. But as it relates to the judiciary, frustrated as we judges may be with the system, we cannot create a role for ourselves that has not been given to us by statute. Nor can we create for ourselves a role that cannot be supported by the limited resources we possess.
So let us be clear. Our judicial role and the accompanying responsibilities that we have been given by statute, require three basic things:
First - determinations as to whether a child at the time of apprehension is in need of protection.
Second - determinations as to whether a child at the time of the hearing is in need of protection.
Third - orders that are made in the best interests of the children.
Put simply, the first two of those responsibilities are not being fulfilled quickly enough. To the extent that those statutorily mandated determinations are being delayed, we are failing. Things must and will change.
In other words, delays of up to eight months before the Master, will be no more. Delays of up to 12 – 14 months in the Court of Queen`s Bench for trial dates, will be no more.
It should be understood that upon implementation of the new model, the expectation will be that matters will be completed in the Masters’ Court within sixty days. If referral of a matter to the Court of Queen’s Bench is necessary, upon referral, the Court will provide trial dates within three to six months.
It should also be understood by all, and consistent with the notice that will be given, that concurrent with the fixing of trial dates at what will be the Court of Queen’ Bench Intake List, there will be the setting of one pre-trial conference. That pre-trial will take place approximately 30 days prior to the scheduled trial date. A parent’s failure to attend either the pre-trial conference or the first and only appearance on the Queen’s Bench Intake List from which the trial will be set, may transform the non-appearance on the Intake List or at the pre-trial, into a Fast Track Trial.
I can advise as well, that there will be an obligation to provide Briefs for the Intake Judge at the initial appearance in the Court of Queen’s Bench. There will be a similar obligation to provide an updated Brief for the one pre-trial that, as I say, will take place 30 days prior to the scheduled trial.
Clearly, these timelines will impose the need for a new rigour, preparedness and a sense of purpose on the part of everyone in the system. In the coming weeks, my colleagues and I, along with the Masters, look forward to explaining the details of this initiative.
The current delays in what we affectionately call the “system” have occurred for many reasons and there is enough responsibility to be shared by everyone. Yet one thing remains clear. Too often, the delays have been rationalized and justified in the name of “the rehabilitative remand”. While everyone who works on a Child Protection proceeding, hopes for and does what can be done to facilitate the reunification of families if and where possible, going forward, delays for that reason, will no longer be justified or rationalized. Put simply, once a child has been apprehended and taken from his or her family, the Court of Queen’s Bench cannot and will not be used as a remediating waiting room for the agencies and parental counsel, hoping to avoid the determinations that judges are morally and constitutionally mandated to make following apprehension.
The current problem of delay in dealing with children in care is a crisis. As with any crisis, paradoxically, it provides all of us with an opportunity – an opportunity to make changes.
At a basic level, the proposed changes represent an opportunity to bring our approach into greater compliance with s. 41 of The Child and Family Services Act. The changes also represent an opportunity for all of us, the judiciary, the legal profession and the CFS system to adjust our current thinking and approaches. Indeed, these changes may force upon us a new openness to non-judicial resolutions and processes which will better ensure that only those cases requiring court intervention proceed in that manner. Needless to say, the changes also provide an opportunity to adjust the way in which some of you practise in the area of Child Protection. I note, for example, the unbundling of legal services and the use of limited retainers – areas where the Law Society has recently provided some guidance. The collaboration with the Law Society in this area represents a new opportunity by which some of you in the profession may choose to meet the old and new challenges of child welfare practice. It’s worth noting as well, that the changes and the accompanying timelines may also make possible, and require, Child Protection trials that are more focused and shorter in length.
Yet, however exciting are the changes and however great the opportunities, I must repeat once more: The Court’s new scheduling model and the Court’s role in adjudicating the issues that it must adjudicate pursuant to the statute, cannot and will not be delayed or obscured by agency program or service issues, or for that matter, by a parent’s rehabilitation schedule. At the end of the day, it is the child who sits in care waiting for both the agency and the parents to act. The current delays are intolerable and unacceptable.
The start date for this new case flow model will be announced shortly. It must commence as soon as possible, but not a minute before it and everyone is ready and able, such so as to ensure it has every chance of success.
If after everything I have now said, the Court’s resolve is at all in doubt, you should know that I have advised Associate Chief Justice Rivoalen that upon implementation of this new model, I will make available to the Family Division, each week, two different judges of the General Division for a period of one year. The allocation of those two judges will be solely for the purpose of hearing Child Protection hearings.
Needless to say, ladies and gentlemen, the proposed model will, in the beginning, be a work in progress. Change and adjustments will be inevitable. These necessary changes should be seen for what they are: the beginning of an evolving process that will, over time, result in a more accessible and more responsive court.
I’ll conclude by saying the following.
Despite the urgency of my comments this afternoon, they should not be seen as a finger-wagging rebuke of anyone. I am well aware of how hard everyone in the Child Protection bar works and how deeply everyone cares. So rather than a rebuke, my comments today should be seen as a call to action. But it is a call to action that requires and expects, in the day and months ahead, everyone’s focus and everyone’s hard work.
I know I speak for Associated Chief Justice Rivoalen when I say that we look forward to collaborating with all of you.