Judges reject role in child-custody bill

Proposal, drafted after the death of a seven-year-old, would improperly make judges investigators, they say


From Wednesday's Globe and Mail

March 25, 2009 at 4:11 AM EDT


A confrontation is brewing between family court judges and the Ontario government over a scheme aimed at preventing a repeat of the shocking death of a Toronto child last year.

The plan would require judges to play the improper role of "investigators" in child-custody applications launched by non-parents, a group of 12 judges said in a submission to a committee of MPPs studying the proposed legislation, Bill 133.

The provisions were hatched in response to the death of seven-year-old Katelynn Sampson. The child was found dead in the apartment of her guardian, Donna Irving, who had been granted full custody.

After Katelynn's death, it was discovered that she had been missing school and had wounds on her body that were not all fresh. The judge who had granted Ms. Irving custody was roundly criticized for making the order despite Ms. Irving having several criminal convictions on her record.

The judges condemned the new provisions as "an unwieldy and intrusive scheme" that will force judges to assemble a welter of evidence involving prior child protection proceedings, family law proceedings and criminal record checks.

"It is improper for judges to assume this role," they said. "A court is not equipped to administer a scheme of this nature, nor are judges equipped to conduct the kind of investigations contemplated. We are convinced Bill 133 does not provide a workable system."

The judges stressed that "there is no crisis." They urged the province to designate the Office of the Children's Lawyer to investigate custody applications by non-parents and assemble the "enormous" number of documents involved.

If left to the judiciary, they said, the job will be "difficult, expensive and burdensome. Thin resources will be stretched even thinner. It will be more difficult to address urgent family problems."

They noted that many non-parents seek custody to enhance a child's educational opportunities, for immigration considerations, or because a relative was injured in an accident.

"Perhaps a child refugee claimant in Darfur is living with an aunt and wants to attend school," they said. "Or a child who is living in Northern Ontario moves to a different community where there is a school that better meets his or her needs."

They also predicted that perfectly legitimate attempts to transfer custody will bog down because family law litigants cannot afford lawyers or obtain legal aid.

"In a system that is critically under-populated by lawyers, the task of judges becomes more difficult," they said.

The potential release of intimate information - such as police, medical and social work reports, child protection files containing unproven allegations, and bank statements - will also cause many applicants to shy away from applying for custody, the judges added.

"The list is endless," they said. "None of this material will have been screened for likely relevance or for privacy concerns."