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Posts Tagged ‘security of person’

How to Ask for a Lawyer – GJ Application

How-to-Get-A-Court-Appointed-Lawyer-for-Your-Child-Protection-Case-452-lssIt was a busy week for family court, with parents seeking parenting time. There was a sensitive parenting case involving a chronic but rare childhood disease called Diamond-Blackfan anemia. There are only 30 cases in North America. It’s hard to think of children who need at least two parents more desperately than those facing lifelong health struggles, but mom had to be encouraged to release pediatric appointment dates. Dad had been volunteering $500 – $1,000/month child support but stopped once excluded from parenting time. His actual child support will be $350/month. And I found the BC legal aid booklet called How to Make a Rowbotham Application in the Court registry.

Below is my first rough attempt to try to modify this criminal application for family court. New Brunswick (Minister of Health and Social Services) v. G.(J.). (1999) is a children’s aid case that actually mentions the Regina v. Rowbotham (1988) criminal case, and both these cases discuss the values of our Canadian Constitution, like liberty and security of person, that led to the first judge being asked to appoint a lawyer to replace legal aid. Then I found a copy of the actual publication on the legal aid website, called How to Make a GJ Application.

I first wrote about the landmark GJ case on this website in 2013, but I was unaware of the connection to the Rowbotham criminal case. The British Columbia Legal Aid publication states GJ can only be used in the Provincial Court of British Columbia and only in cases under the Child, Family and Community Service Act. But of course our Constitution applies to all courts and all laws. As we pause at the beginning of the new year to reflect, let’s hope we can extend the use of this application to create fairer child support and shared parenting.

File No.______________

_____________Registry



IN THE _____________ COURT OF BRITISH COLUMBIA

BETWEEN:

HER MAJESTY THE QUEEN

and

______________________________

(Applicant’s name)

NOTICE OF APPLICATION AND CONSTITUTIONAL ISSUE

(Constitutional Question Act, R.S.B.C. 1996, c. 68, Section 8;
Constitution Act, 1982, Part 1, Sections 7, 11(d) and 24(1))



TO: Attorney General of Canada

900-840 Howe Street

Vancouver, BC V6E 3P9

and

TO: Attorney General of British Columbia

Parliament Buildings, Room 232

Victoria BC V8V 1X4



TAKE NOTICE that the applicant will make an application to a judge of the ________________ Court on the day of ______________________, 20______at______________________(time), or as soon after that time as the application can be heard at the _______________________Court at(address):_________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

THE APPLICATION IS FOR an Order staying the proceedings until the Attorney General of ____________________________________provides the necessary funding for counsel subject to any assessment of counsel’s bill.

THE GROUNDS FOR APPLICATION ARE:

1. The applicant has a hearing date of __________________________________________with respect to child protection issues, including issues of:

(list protection issues here)___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

2. The applicant wishes to retain counsel to maintain custody of their children. To that end, the applicant applied to the Legal Services Society for legal aid and legal aid has been refused.

3. The applicant cannot pay for a lawyer.

4. Representation of the applicant by counsel is essential to a fair trial and to the ability of the applicant to fully address these child protection concerns. The applicant believes the protection issues are serious and complex. The applicant is ______________years old and his/her level of education is______________________________.

5. The applicant relies on section 8(c) of the Family Court Rules (CFCSA).

6. The applicant also relies on Sections 7 and 11(d) and 24(1) of the Charter, and the common law.

7. Section 7 and 11(d) of the Charter guarantee the applicant the right to a fair hearing in accordance with the principles of fundamental justice and accordingly require funded counsel to be provided if the parent wishes counsel, cannot pay a lawyer, and representation of the parent by counsel is essential to a fair trial: New Brunswick (Minister of Health and Community Services) v. G.(J.), (1999), 3 S.C.R. 46.

8. Sections 7 and 11(d) of the Charter also guarantee the right to make full answer and defence.

9. The proper remedy is a stay of proceedings pursuant to Section 24(1) of the Charter until the necessary funding of counsel is provided.

There were 2 issues in G.(J.).: 1)The best interest of the child is paramount and presumed to lie within the parental home. 2)Section 7 rights to liberty, and security of person are so significant they are rarely overridden by other social interests. Effective parental participation at the [custody] hearing is essential for determining the best interests of the child in circumstances where the parent seeks to maintain custody of the child. Without the benefit of counsel, an unacceptable risk of error in determining the children’s best interests is created, thereby threatening to violate both the parent’s and his/her children’s s. 7 right to security of the person.

. . . I would have thought it plain that the right to nurture a child, to care for its development, and to make decisions for it in fundamental matters such as medical care, are part of the liberty interest of a parent ~ La Forest J. in the B.(R.) case.

G.(J.). at paragraph [60]For a restriction of security of the person to be made out, then, the impugned state action must have a serious and profound effect on a person’s psychological integrity. The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety.

G.(J.). at paragraph [61]I have little doubt that state removal of a child from parental custody pursuant to the state’s parens patriae jurisdiction constitutes a serious interference with the psychological integrity of the parent.

G.(J.). at paragraph [123] I agree with the Chief Justice that: “In proceedings as serious and complex as these, an unrepresented parent will ordinarily need to possess superior intelligence or education, communication skills, composure, and familiarity with the legal system in order to effectively present his or her case”.

The Canadian Constitution (Charter of Rights and Freedoms) says everyone has
the right to a fair trial.

In child protection matters, once someone has been denied legal aid, they have
the right to ask the court to appoint a lawyer to ensure they have a fair trial.

This request is called a “JG application.” JG is the name of a New Brunswick court
case (1999) about the right to have a lawyer in a child protection case..

Canadian courts create errors in determining the best interest of the child because of unfair trials without any ethical legal advice. These are devastating loses for any of us, which is why so many Canadians are seeking shared parenting arrangements.

Canada Flag childs hand

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Il n’y a que 113 jours avant la journée de sensibilisation!

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Only 113 days till Awareness Day!

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Dr. Hedy Fry on Child Health

Dear Mr. Kevin Pedersen,

Canadian Children Physical Activitiy

Thank you for taking the time to contact my office on Bill C-560, An act to amend the divorce act (equal parenting).

It was a great privilege to receive your message Honourable Dr. Fry. Thank you for giving me a chance to discuss our children. I wish my own Member of Parliament would do so.

Consistent with the 1998 Joint Senate and House of Commons Committee on Custody and Access’s report For the Sake of the Children, I recognize that parenting is only an enhanced process when both parents are active participants; however, the Supreme Court of Canada has placed the best interests of the child as the foremost principle to be considered in such litigations.

First, our Divorce Act(Canada) is an application-based statute. At least one parent must apply for a divorce. In our case, neither parent applied. An application was entered for a child protection hearing, which Canada had a statutory duty to fund as a public case. The best interests of the child are supposedly always considered in any custody case, although public custody cases brought as child protection cases have an an exactly opposite definition of best interest of the child from private custody cases brought as divorces. In a child protection case the law says a state-funded lawyer is mandatory to find the complicated best interest of the child. In divorce the law says it’s easy to find best interest and no lawyers are needed. The vast majority of separated parents are self represented and false allegations in divorce have historically been high in hopes of creating state-funded child protection custody cases.

That being said, the Supreme Court declared in Gordon v. Goertz that “each child is unique, as is its relationship with parents, siblings, friends, and community. Any rule of law which diminishes the capacity of the court to safeguard the best interests of each child is inconsistent with the requirement of the Divorce Act….” I, along with both the Liberal Critics of Justice and for the Status of Women, oppose this bill with the concern that this legislation will only weaken the Divorce Act’s principle of representing the best interest of the child in favour of the rights of parents.

Let me say that again. The contradictory argument is so strong that the law on child protection custody cases, meaning the New Brunswick Minister of Health’s case against a single mom G.(J.). calls your law on private custody cases, meaning the Gordon’s divorce case, UNACCEPTABLY RISKY! The exact wording of the G.(J.). warning, which as you may know Dr. Fry, was upheld by the Supreme Court of Canada in 1999, states:

Without the benefit of counsel, the appellant would not have been able to participate effectively at the hearing, creating an unacceptable risk of error in determining the children’s best interests and thereby threatening to violate both the appellant’s and her children’s s. 7 right to security of the person.

~ The Honourable Lords and Ladies of the Supreme Court of Canada As Per Lamer C.J. and Gonthier, Cory, McLachlin, Major and Binnie JJ

From a health perspective, every child involved in a protection hearing or divorce hearing risks a permanent loss of parenting time and faces a combination of stigmatization, loss of privacy, and excessive, unnecessary disruption of family life sufficient to constitute a restriction of the child’s security of person. While this child harm may not always rise to the level of psychiatric illness for every child in court, it is certainly greater than ordinary stress or anxiety and constitutes a serious interference with the psychological integrity of the child. Honourable Dr. Fry, Canada’s Divorce Act version of best interest of the child is arbitrary child harm and unconstitutional.

The Canadian Bar Association strongly opposes this bill on the premise that “the best interests of the child are not always met by exactly equal ongoing parental involvement. Each case must be evaluated on the facts and each child treated as an individual.” After all, family circumstances vary considerably from family to family, as does the interests of the child. Placing a presumption on the courts of equal time-sharing only seeks to overly simplify a personal matter that has no “cookie-cutter” mold to fit. While the considered bill seeks to remedy such concerns by making the assertion that judges may go against the presumption if the child would be substantially better off; however, there are legitimate concerns that rebutting such a presumption would not be easy due to the burden of proof that would be required to do so substantially.

The Canadian Bar Association and all other self-serving trade unions, like the British Columbia Teachers’ Federation, trying to use outdated arguments for monetary gain, have been completely discredited. To the contrary, the Honourable Justice Brownstone of Toronto has stated we must get inside our Middle Schools and confront the parental alienation of eleven year old children. How could so much child harm be happening in front of teachers and judges, who claim they have a duty to report child abuse? I can tell you, Dr. Fry, that teachers say it’s hard to tell when the duty to report exists and judges tell parents they are not there to answer court users legal questions.

No one I know calls the Great Melting Pot of Canada the land of the cookie cutter. Canada is proud of it’s diversity and our cultural mosaic has nothing to do with the child harm caused by our arbitrary, unconstitutional Divorce Act. Countries around the world are reforming their family laws.

Tasha Kheiriddin of the National Post has also voiced her concerns on this matter by invoking a report by the Australian government that provides that equal shared parenting leads to the “prioritization of parents’ rights over those of their children” and another report by the University of Virginia that found that 43% of babies “with weekly overnight visits to the other parent were insecurely attached to their mothers, compared to 16% with less frequent overnights.” In short, there is a considerable amount of literature and discussion that disproves that equal shared parenting will address the best interests of the child.

I am disappointed you would try to McIntosh me. Jennifer McIntosh and Samantha Tornello have been strongly discredited, Ms. McIntosh for having political motives and Dr. Tornello by the vast majority of medical researchers, including Dr. Warshak and 110 of the world’s top experts. This Consensus Report appeared in February 2014 in a prestigious journal published by the American Psychological Association. With all due respect Honourable Dr. Fry to you and all of Canada’s other 307 Honourable Parliamentarians, I worry that our whipped representatives may not speak for all women, or all lawyers, or all Liberals (the party of the Charter), or all media, or the majority of medical scientists, or even the majority of their Canadian constituents. The situation is so grave for children, delay and political debate seems like further abuse.

Bill C-560 fails to truly improve upon the current Divorce Act and will instead only sacrifice the best interests of the child in order to appease the rights of parents. Our country can no doubt do better than that by working to improve existing laws that allow judges the capabilities of considering the interests of the child on a case to case basis.

The constitutional remedies of Bill C-560 are reasonable and much more so than the chaos created by the current Divorce Act. Here’s a test for you, Dr. Fry. There are approximately a dozen complicated factors to consider when assessing the best interest of a child and our governments are in the worst debt since 1930, and some provinces are in the worst debt in Canadian history. How do you intend to pay for these expensive, complicated three-week divorce or child protection hearings? Since the vast majority of separated parents are self represented, how do you intend to run fair trials for children without lawyers? Do you agree that your message that divorce is all in the best interest of children, ignores the fact it is all about money and family court judges never consider the children instead following a definition of best interest that is arbitrary, unconstitutional, and exactly contrary to the definition of best interest in child protection cases. In my own family a British Columbia court labelled our child protection hearing a divorce hearing, even without an application for divorce, to save money and to avoid the difficulty of finding our children’s best interest.

Once again, I would like to thank you for contacting me on this issue. While I do not believe that C-560 truly improves upon the lives of children involved in such matters, I do believe that this is an issue that should be appropriately addressed by placing children first.

I believe shared-parenting after separation is in the best interest of children as found by a strong consensus of medical professionals. I agree with you that this issue will finally be addressed by placing children first. Thank you again for the privilege of discussing this important children’s health issue. I remain sincerely yours, Kevin Pedersen, Abbotsford, B.C.

Sincerely,

Hon. Dr. Hedy Fry P.C., M.P.

Liberal Health Critic

La fête des bulles d’amour – le 25 avril, 2014
Ensemble, nous sommes capables de beaucoup.
Il n’y a que 337 jours avant la journée de sensibilisation!

Bubbles Of Love Day – April 25, 2014
Together We Can Make A Difference
Only 337 days till Awareness Day!