“There is a difference between parents who are poor, and poor parents. Ms. C and Mr. S are parents who are poor. The minister argues that they are poor parents and that their 20-month-old daughter, D, should be in the minister’s permanent care and custody. The minister says there is substantial risk of D’s physical or emotional harm or neglect. The parents dispute this…”

Justice Elizabeth Jollimore
Written reasons for decision
January 2, 2018

This column originally appeared in the Halifax Examiner January 8, 2018.

For a variety of reasons, the complex human dramas that play out every day inside the bubble of family courts rarely break the surface of media and, therefore, public consciousness.

In part, that’s because family courts, which deal with “all family law matters except divorce and division of property,” tend to focus on very personal matters — what to do with a child who stops going to school, or how to decide which parent gets to spend how much time with which child on which weekend and under what circumstances… — that matter most to the individuals and families concerned, and not so much, in their specificity, to the rest of us.

At the same time, family court cases have always been problematic for journalists to cover. We’re used to being able to name names and provide identifying details that will help our readers put context to the issues we write about. But under Nova Scotia’s Children and Family Services Act, “information that has the effect of identifying a child witness, a child participant in a hearing, or a child who is the subject of a proceeding… cannot be published or made public. Nor can information that has the effect of identifying a parent, guardian, foster parent, or relative of the child.”

As reasonable as those prohibitions are, they often leave reporters scrambling to make human sense out of what Stick Person X did to Stick Person Y, and how that affected Stick Person Z. Hardly the stuff of compelling narrative. Or deeper understanding.

Given shrinking newsroom budgets and the shriveling size of news holes in newspapers — the only media that traditionally had the resources to routinely cover what happens in the courts — there is now almost no coverage of anything except the most dramatic and sensational stories from inside those family courtrooms.

And that’s a shame. Those very personal matters that matter most to the individuals and families concerned should often concern us too.

Consider the case Mr. S and Ms. C, and their toddler, D. And the question of how much of what gets referred to as poor parenting is simply the result of being parents who are poor. And what that means — or should mean — for public policy.

Which brings us to Justice Elizabeth Jollimore’s written decision last week in the case of the Minister of Community Services v S.C and M.S.

We know about this case — and about a number other recent intriguing, more-consequential-than-they-seem family court decisions — thanks to the work of the Halifax Chronicle Herald’s Chris Lambie. Lambie, one of Halifax’s finest journalists, says he began reading family court decisions “because someone here once said, ‘we never report on family court stories…’” So he decided to. And “there are some really compelling stories in them,” he says. There are.

The key protagonists in this story both have had troubled life histories.

Ms. C, a biracial woman who is now 21, is the oldest of nine children. She left school after three failed attempts to get her Grade 10, in part because she had to care for her younger siblings and in part because she was dealing with mental health issues. While growing up, she’d been bullied because of a learning disability and her own questioning of her gender identity. She cut herself, abused prescription drugs and ended up hospitalized twice.

That said, the judge also noted that C “has extensive experience caring” for her younger siblings. “The access notes reveal her to be a confident, competent and capable care-giver.

Mr. S is 25. He left home at 15 to escape his father’s verbal and emotional abuse, and eventually ended up in the Phoenix Youth Program, which helped him find his feet in the world. But its support ended when he turned 25. Although he’s still four credits shy of his high school graduation, Judge Jollimore noted, “he has held several jobs. He had not been fired from any job.”

The two met in the summer of 2015. A few weeks into their relationship, she discovered she was pregnant. S was not the biological father, but the birth father wanted no part in the child’s care, so S “has always acted as D’s father.”

By the time Baby D was born in February 2016, S had lost his job after the company he worked for lost a contract, so the couple and their infant daughter moved in temporarily with her mother and her mother’s family. The result, noted the judge, was that there were suddenly 10 people living in a small four-bedroom house. “Crowded into this home and without enough money, there was tension.”

In late March, shortly after one of S’s long-time friends died as the result of a violent suicide — a tragedy that has left S “shaken” and prone to anxiety — the adults in the close-quarters household got into an argument that became physical. S called the police and notified community services about the incident. Community services investigated but “closed the file without further involvement” because it determined any risk to the child — its primary concern — was “unsubstantiated.”

Although C, S and D then moved into other accommodations, their problems didn’t end. S called the police twice more, once because of an argument between himself and C, and a second time after he’d stopped C from committing suicide by throwing herself into traffic.

Although S and C took care to shelter their daughter from their disputes, community services eventually took their daughter into temporary care in June 2016. At the time, the department came up with a management plan “for the parents to work with a family support worker, do couples’ counselling” and have supervised visits with their daughter while both of them dealt with their individual mental health issues. The goal was that the child would eventually be returned to her parents’ care.

By then, C was already pregnant with a second child, their son, who was born “less than 10 months” after Baby D. Two months after he was born, he was taken into care too, and has since been placed with S’s parents.

Complicated? Yes. Troubling, on all sorts of levels? Of course.

Despite all of that, D herself seems to have thrived. She is “healthy”, “developing well” or “developing on par for her age,” “very happy,” displays an “even temperament” and is “social.”

But in November 2017 — 17 months after the department of community services took Baby D into temporary care — the minister decided there still was “a substantial risk of D’s physical or emotional harm or neglect” if she was returned to her parents, so the department applied to make D a permanent ward, in essence writing S and C out of their daughter’s life forever.

Their arguments boiled down to three:

• each parent still had unresolved mental health issues;
• the future of their relationship was uncertain;
• and they’d failed to demonstrate they “were able to maintain stable housing.”

Over the course of her 12-page written decision, Judge Jollimore effectively eviscerated each of the minister’s arguments with simple common sense.

She pointed out that — with one exception — the couple had done everything the department asked of them in its June 2016 “plan” for them.

As for the department’s claims about C’s unresolved mental health issues, the judge pointed out C had “experienced no mental health crises for the past 17 months. Her history demonstrates that when there is a crisis, services are accessed. She is aware of the available services, as are those who support her.”

At the same time, the judge dissected and dismissed the department’s argument that S’s frustrated response — “I’m done” — to criticism during “access sessions” with his daughter “reflected a need for treatment.”

In fact, said the judge, his response reflected a legitimate reaction to contradictory instructions from workers assigned to watch over his interactions with his daughter. At one meeting, for example, he allowed his daughter and infant son to go outside without hats or sweaters. The government’s “access facilitator,” who wrote a report about the incident, criticized him for that. But an experienced family support worker, who was also present, noted: “it was eight degrees outside, with no wind. The children were being moved 50 feet, from the library to the car… The children were properly dressed.”

On another occasion, another access facilitator told S it was OK to let his daughter crawl on the floor at the library. Eight days later, a different access facilitator wrote up an “incident report” criticizing him because “this was the wrong thing to do.”

Wrote the judge: “Mr. S was caught in the middle, unable to satisfy the conflicting judgments of the access facilitators.” No wonder he threw up his hands and said, “I’m done.”

When S asked for parenting classes to help him better understand what he needed to do, “the social worker suggested he find parenting classes on his own…”

As for the government’s argument the couple’s relationship was unstable? While they may or may not break up,” the judge wrote, “this court’s docket is populated by broken family relationships. The end of a family does not necessitate the minister’s involvement. The minister must point to something more.”

The couple’s failure to find more upscale accommodation certainly wasn’t that something more, according to the judge.

The judge tracked the couple’s various changes of location, including moving out of one apartment where they “had problems with a neighbour who engaged in criminal behaviour,” and another where the landlord refused to make necessary repairs. “The parents left housing where there was criminal activity, health or safety concerns. This is appropriate,” the judge wrote. “The minister would raise concerns if the parents remained.”

To complicate matters, the family’s limited housing options became even more limited when they were also forced to meet the demands of the department and the family court process.

Both parents had to quit jobs after “the minister complained the parents were missing too many access visits” because of their work schedules.

Although S landed a new job just before the trial was scheduled, he couldn’t take it “because his employer would not let him miss five days of work to attend the trial. So he found a part-time minimum wage job cleaning floors. Mr. S,” the judge pointed out, “is hard-working and committed to supporting his family.

“The parents,” she added, “cannot be faulted for their inability to afford homes in better neighbourhoods.”

The reality, the judge concluded, was that S and C were being punished not for anything they’d done, but for what they couldn’t be: middle class.

On the one hand, what happened to S and C is a very personal story. But the department of community services’ response to it is a matter of public interest that should concern us all.

A version of this column originally appeared in the Halifax Examiner. To read the latest column, please subscribe.