‘Completely dysfunctional’: Families in limbo as COVID slows down access to justice in children’s aid cases
With each passing day of lingering lockdown, M.S. grows increasingly concerned about her son's health - but her fears stem from a different place than most parents during the COVID-19 pandemic.
Over the last year, the Oakville mother (who is not being identified to protect her child's identity) has been in dispute with her son's father, because she says she has proof the boy is being exposed to both cannabis and tobacco second-hand smoke during visits.
She also says he has stopped paying child support, so she has been trying to secure a support order and to modify their time-sharing agreement until he agrees to stop smoking indoors and in the presence of their son.
But she says over the last year, the situation has become untenable due to delays, a backlog of court cases and a justice system collapsing under the weight of its own rules and regulations.
COVID has completely delayed everything," M.S. says. Like a normal order for child and spousal support would typically take a few months. I've been waiting (almost) a year."
More concerningly, she fears her son's health is deteriorating because of the exposure to second-hand smoke. She says it's reached a point where the two-year-old boy now experiences shortness of breath when he runs. M.S. sent medical documentation to the Star that shows her son tested positive for 7.5 ng/mL for cotinine, a nicotine metabolite, in his blood.
According to the Centers for Disease Control and Prevention, non-smokers who are exposed to typical" levels of second-hand smoke typically have less than 1 ng/mL, while levels in the range of 1-10 ng would indicate heavy exposure.
M.S. says she reported her concerns to police on April 13 as a child abuse matter and was told they would investigate and send a report to the Halton Children's Aid Society. She's heard nothing since.
She says the society has been unresponsive or unwilling to help.
Dealing with CAS prior to COVID, they were a bit slow. But now with COVID you can't even get a response," M.S. said.
I've been waiting for CAS to get back to me, and it's like they've received a report from police, they've received a report from the doctor. And it seems like they don't want to help," she added.
While she appreciates there are delays in every aspect of society due to the pandemic, she says her child is at risk of being affected for the rest of his life if something isn't done to protect him. She says her family doctor has expressed concerns her son is developing asthma, a chronic condition, due to the second-hand-smoke exposure.
In an emailed statement, a spokesperson for the Children's Aid Society of Toronto (not involved in M.S.'s case) said its workers are expected to return phone messages within 24 hours and the society encourages clients to reach out to their worker, supervisor or manage if they're facing challenges.
While exposure to second hand smoke is not necessarily a child protection concern, we would always encourage parents to ensure that they are parenting from a child-centred perspective which would include paying attention to issues that could impact a child's health," the statement reads.
Tammy Law, president of the Ontario Association of Child Protection Lawyers, said she's seen first hand how the delays and backlogs are affecting court cases and families.
The backlog has increased significantly, which has serious implications for access to justice ... it's so hard to get a court date," Law said. It was bad before, now it's unacceptable.
I do think the individual judges and court staff are really trying really hard. People are actually aware of this. It's just that there's a systemic issue," she added.
The problem is particularly acute in courts in large population centres, like Toronto. Pre-pandemic, Law said large courts could hear dozens of cases in one day because some only required five minutes while others took much longer. But in the proceedings she's been involved with, everything is scheduled in 30-minute blocks, allowing only 10-15 cases to be heard daily, she said.
In a statement, a spokesperson for the Ontario Court of Justice said it has been encouraging limited" in-person attendance at courthouses during the third wave due to the pressure on public resources and noted that cases can be resolved without a trial. Child, Youth and Family Services in-person, hybrid or remote trials are adjourned from April 26 to May 7.
The Court is committed to facilitating the conduct of proceedings other than trials by remote technology (video or phone) wherever possible unless an in-person appearance is required to ensure meaningful access to justice," the statement reads.
The Ministry of the Attorney General's Office said as of Dec. 31, 2020, the number of pending family cases at the Ontario Court of Justice had only increased slightly, at 8,395 cases compared to 8,259 at the end of 2019 . Pending criminal cases increased significantly, from 176,202 compared to 120,999 on Dec. 31, 2019. Numbers for 2021 are not yet available.
There are other factors that could be contributing to delays; while the courts have tried to be nimble by providing alternative options, technology is also proving to be a barrier. Most proceedings are conducted via Zoom or other videoconference, and Law said some clients have struggled because they can't access a computer or because they don't know how to use the internet.
It's especially problematic when these parents are facing child protection proceedings where they face the possibility of losing their kids, she said.
The court is not working the way it should," Law said. And then you add the technology issues and people not having access to technology ... It's completely dysfunctional."
Law said some court hearings have been delayed due to inadequate time slots or staff, which some have said could be mitigated by vaccinating all court staff.
John Struthers, president of the Criminal Lawyers' Association, has been vocal about what he says is a need to vaccinate all workers in the courts, regardless if they're part-time, or contracted, to maximize efficiency and keep proceedings moving.
We cannot operate the courts without the staff and they have not been given adequate priority in my view," Struthers said.
The court is having to dedicate all of the available staff to these particular issues with respect to bail and urgent child custody and access matters. And as a result, all of the other things are just building up yet again," he added.
M.S. said she is still waiting to hear from children's aid about her April 13 police report and says her lawyer has said all he can do right now is write a letter to her child's father asking him to stop smoking in his private property.
Meanwhile, she worries about the little boy every time he visits. Her next court date related to child and spousal support is in late May, but her lawyer has advised they'll have to wait until a later date to make a motion bout the second-hand smoke concerns.
I understand it's a pandemic and it's a very difficult complex situation. But when you look at a child and their health is being affected negatively impacted ... there should be things to protect kids. There's no excuse when it comes to the safety of a child."
Omar Mosleh is an Edmonton-based reporter for the Star. Follow him on Twitter: @OmarMosleh