Family Court, Halifax

PART 1

She had done everything she was supposed to, everything that child protection authorities — who still seemed to be in charge of her life, even though she was now an adult — had asked of her. And yet here she was, on September 11, 2020, in the Supreme Court of Nova Scotia’s Family Division, desperately trying to convince Justice Pamela J. MacKeigan not to let Kelly Regan, the province’s minister of community services, take her seven-month-old son from her.

In court documents, she is identified as J.C., so that’s what I’ll call her.

J.C.’s case is far more common than you might assume. It’s even more common, of course, if you happen to be Black, Indigenous, poor, a graduate of the province’s child welfare system yourself, or all of the above.

The outcome is usually a foregone conclusion.

In 2015, then Liberal Community Services Minister Joanne Bernard pushed through complex, controversial changes to Nova Scotia’s child protection act, supposedly to “broaden the definition of a child in need of protective services so that child protection can intervene at an earlier stage when problems are smaller and more likely to be remedied.”

Instead, according to Nova Scotia Child Welfare in Crisis, a 2019 report by veteran social workers Jacqueline Barkley and Robert Wright, “we are seeing things getting worse for families, not better.”

In fact, the case of the “Minister of Community Services v J.C.” represents an almost perfect-storm example of what Barkley and Wright described as one of “the erroneous ideas that are leading to our ineffective or misdirected interventions … the fetishization of risk.”

On the day J.C. showed up in court for what is known in the child protection trade as a “five-day” — a hearing five business days after a child is taken — J.C. was 21, and she already knew better than most how the system worked.

From the inside.

According to an affidavit filed by the department of community services, J.C. is African Nova Scotian, with a little Mi’kmaq from her great grandmother on her father’s side. She was barely three years old when she first ended up in the “care of the minister,” as child protection is euphemistically described. She was shuffled around — stints with her mother who had addiction issues, several “difficult” years with an aunt and uncle who adopted her but were “unkind.” In truth, J.C. spent most of her growing up years in care, including several years at the Wood Street Centre in Truro, “a secure treatment program for children and youth … who are suffering from an emotional and/or behavioural disorder and who require confinement in order to remedy or alleviate the disorder.”

None of it went well. By the time she was 17, J.C. had serious substance abuse issues. She spent time in a rehabilitation program but, the court file shows, she was “discharged without completing the program.”

For all of that, the child welfare system was the only family she’d known, so she told authorities she didn’t want to “age out” of the system when she turned 19. She also wanted to continue her education, which had been disrupted by her various issues and institutionalizations. Neither wish was granted.

Instead, J.C. found herself, at 19, suddenly dumped out into a world not of her making or wanting. She got into trouble with the law, “incurring several criminal charges [and] serving a brief period of incarceration.”

That, ironically, brought her into contact with the Elizabeth Fry Society, “a non-profit, charitable organization that engages with vulnerable women and girls to foster reintegration, rehabilitation, personal empowerment and to address the root causes of criminalization.”

Perhaps it was E-Fry’s flicker of light-in-her-darkness tunnel, perhaps it was finding herself pregnant and alone at age 20. Whatever prompted it, the court file indicates there was a sudden and dramatic shift in J.C.’s life path after that.

During her pregnancy, she moved into Holly House, a safe space where eight women can live for up to a year in self-contained single rooms within a supportive community while they build or rebuild their lives. It’s operated by the Fry Society, whose staff work in the same building and help residents “develop a personal transition plan, [encourage] education and employment exploration, housing search support, community resources referrals, and personal development programming.”

J.C. not only willingly “participated in in-house programming,” but she also attended prenatal classes at the North End Community Health Clinic as well as another six-week prenatal course offered through Phoenix Youth Programs. She collaborated with a doula for the birth of her son.

Even before K.C. — his designation in the documents — was born in the winter of 2020, J.C. found an apartment at Supportive Housing for Young Mothers (SHYM), a community-based organization that helps single mothers.

Despite an ongoing pandemic, she applied for and was accepted into a two-year trades program at the Nova Scotia Community College that was supposed to start in September 2020, won a full scholarship, and navigated subsidized daycare so her son could be looked after while she went to class.

J.C. knew enough, her supporters say, to ask for help whenever she needed it, including for “support with parenting, life skills and her goals” from E-Fry, Phoenix House and Public Health. According to an affidavit SHYM filed with the court, J.C. willingly asked for help “in taking [K.C.’s] temperature, calling the public health nurse and following through with their recommendations.”

J.C. noted in her own affidavit that she had “become exceptionally in tune with K.C.’s cues. I am able to quickly determine whether K.C. is hungry, sleepy, too warm or cold, and/or gassy, and thus can respond quickly, and in an appropriate manner… On two separate occasions, I brought K.C. to the Dartmouth General Hospital out of an abundance of caution. On both occasions, K.C. was deemed to be in perfect health. On several other occasions, I have sought advice from other mothers and community members who I trust.”

Officials at SHYM conduct regular weekly safety checks of all its apartments. “There has never been a time when [J.C.’s] apartment was viewed as unsafe for a child to live in,” it reported.

But then, in June 2020, according to the court file, the minister “received a referral” — some sort of complaint that isn’t explained in the file — about J.C.

It was “investigated and not substantiated.”

As part of that investigation, social workers made two unannounced, just-checking visits to J.C.’s apartment. Their findings:

  1. J.C.’s residence was clean and tidy.
  2. There were no signs of substance abuse.
  3. J.C. was observed to be attentive to K.C.
  4. J.C. reported she does not get involved in the conflict/drama among residents of SHYM.
  5. J.C. even signed consents to allow agency workers to speak to SHYM staff, a friend and her sister, who had cared for K.C. on occasion in order to give her a break.

After checking with those “collaterals” — in child welfare, there appears to be a euphemism for every occasion — “no concerns were raised and therefore the agency file was closed.”

But not forgotten.

A spokesperson for the department of community services says it can’t comment on individual cases, but she did acknowledge that when there’s a “referral,” the department conducts “a full review of any prior child welfare involvement… [including] investigations that were substantiated and/or those that were not substantiated.”

Far from forgotten.

•          •          •

At 1:20 am on the night of Sept. 3, 2020, Jenna Roberts, SHYM’s program coordinator, called the child protection agency’s after-hours emergency line to report that J.C. was in her apartment with her son, and that she was intoxicated.

Roberts knew J.C. had never previously consumed alcohol while caring for her son, and that the young woman always arranged for someone to care for K.C. if she planned to go out drinking. Despite that — and despite J.C.’s exemplary behaviour at SHYM — Roberts understood she had no choice but to report her to child protection authorities.

Rollie Thompson

That’s because those 2015 amendments “vastly expand[ed] the duty to report of professionals and officials, like doctors, teachers, daycare workers and transition house workers.” Dalhousie law professor Rollie Thompson, whose research specialty is child protection, had warned the legislature’s law amendments committee at the time that the amendments would lead to an escalation in unnecessary reporting.

The new law, in fact, required professionals and officials to report even if a child only “may be about to suffer abuse in the imminent future,” a vague determination that forced them to predict the future, or potentially face legal consequences. Past experience, Thompson told the legislators, “tells us that two-thirds of those new reports will not raise protection issues, with only one-third resulting in any continued service or supervision.

No matter.

Within 30 minutes of Roberts’ call, Julie MacLean, the agency’s social worker on duty that night, entered J.C.’s apartment accompanied by two police officers. They found J.C. “sleeping in bed and her arm was over K.C., who was asleep beside her.” When the intruders woke her — she was “difficult to wake” — J.C. quickly acknowledged she had been drinking. She’d made arrangements for her sister to look after her son while she had drinks with a friend, she explained, but then her sister had been unexpectedly called into work. Knowing she was intoxicated, J.C. returned to SHYM and asked another resident to stay with her while they got the baby ready for bed.

All good?

No.

MacLean informed J.C. that, because she’d been drinking, someone else would need to take care of her son overnight.

Perhaps unsurprisingly — given her own lifetime of unhappy experiences with child protection — J.C. objected. She even “used profanity” when ordering MacLean to leave her apartment. She “alternated between being escalated and calm,” noted the file, and told those now crowded into her apartment that she was “triggered by child protection.”

The dispute only finally ended when Kaliegh Smith, a SHYM support worker, agreed to stay and care for K.C. overnight.

Emma Halpern, Elizabeth Fry Society

The next afternoon, J.C. met at the apartment with Emma Kearney, a child protection social worker, and three women, who now amounted to J.C.’s support team: Jenna Roberts, Kaliegh Smith, and Emma Halpern, the director of the Elizabeth Fry Society.

J.C. began by apologizing for her outburst the night before. She acknowledged she shouldn’t have had her son in her care after she’d been drinking. But she insisted she’d never drunk alcohol before while taking care of K.C., something SHYM’s Roberts confirmed to the social worker.

There followed a back and forth over what to do next. Kearney insisted J.C. would need to be “fully supervised” with K.C., or “someone else” would have to care for the child until the agency completed its investigation. J.C.’s support group countered with suggestions intended to keep mother and child together.

At one point, Kearney wondered if J.C. “could identify a family member to provide supervision.” She couldn’t. She’d grown up in care, away from her own mother and other family support. When J.C. told the social worker that staff at the Fry Society were now her family, “Ms. Kearney made it very clear that [Child Protection Services] would only support a plan that involved having someone, specifically a family member, ‘having eyes’ on K.C. 24 hours a day.”

Catch 22.

Later that day, the Fry Society’s Halpern followed up with Robyn Byrne, a supervisor at the child protection agency’s Dartmouth office, asking Byrne to put the agency’s supervision requirements in writing so she could talk to her board to determine if the society could meet those expectations for K.C.

While that was being worked through, Halpern asked if K.C. could stay temporarily with a couple in the community.

Let me introduce you to the couple Halpern was referring to.

Fiona Bergin

Dr. Fiona Bergin is a family doctor and assistant professor in Dalhousie’s department of family medicine, as well as a non-practising lawyer and former faculty member at the university’s law school. One of the health law topics Bergin teaches to medical students and residents at Dalhousie concerns a physician’s “duty to report” any concerns they observe under the Children and Family Services Act. Her husband, Paul Festeryga, is a tax lawyer and partner at Stewart McKelvey.

The couple had become involved with K.C. as an infant when he was just two weeks old. They’d first met J.C. and her son through their own daughter, DeeDee, then a law student and a volunteer at E-Fry. During the next seven months, Bergin had voluntarily provided occasional care for the baby, looking after him in her home for 18-24 hours at a time every few weeks to give J.C. a break.

Despite Halpern’s attempts to explain the role the Bergin/Festeryga family was already playing in the lives of J.C. and K.C., and its significance — “when someone grows up without family supports, it is a clear indication of excellent risk mitigation strategies when they have reached out and built a wide community of support for their child outside the biological family,” she noted in an affidavit — “Ms. Byrne appeared to not understand.”

Bergin, of course, wasn’t just any casual babysitter; she was a doctor too. As she explained in an affidavit she submitted before K.C.’s court hearing, she’d had plenty of opportunities to observe J.C.’s relationship with her son:

I have never in the seven months I have been caring for K.C. had any concerns for K.C.’s health and well-being while in the care of his mother, J.C. In fact, I often commended her for how well she was caring for K.C. and how I admired her ability to do so with relatively little day-to-day support.

As a practising family physician, with young mothers and infants in my practice, I frequently assess the interactions between mothers and their infants. I have observed the interactions between J.C. and K.C. on numerous occasions and it is apparent to me that J.C. and K.C. have bonded very well to each other and that J.C. exhibits appropriate attention, affection, and love for K.C.

K.C. presents as a very happy, well-cared for infant.

Without waiting for Halpern to consult with her board or reaching out to Bergin to see if she would be willing to help, the agency convened its own internal risk management meeting that same afternoon to discuss the options. They decided there were none.

Again, no surprise. As Rollie Thompson had put it in his submission to the law amendments committee back in 2015, social workers — “out of caution, or out of concern for personal liability, or out of inexperience … will err on the side of taking children into care if the act permits it.” The act did.

Two social workers soon showed up at J.C.’s apartment to take her son because “no other plan was presented for him.”

When J.C. informed them Bergin’s family had said they were prepared to care for K.C. on an emergency basis that night, they told her to take it up with the judge … next week.

When Halpern called the agency’s acting supervisor, Nicole Warren, to provide Bergin’s phone number, she was told nothing would be done that night, but that Warren would pass the number on to the assigned worker … the next day.

When Fiona Bergin herself called to offer her home for the night, she too was brushed off. A social worker “advised she would pass her information to the assigned worker” … also the next day.

The department’s official reality-be-damned response, conveyed in an email to me, is that “child welfare services are available and provided during weekdays as well as on evenings and weekends.”

The next day, Bergin, her husband, and their daughter met with Warren at the agency’s Dartmouth office. Warren told them nothing could be done now that “the decision to apprehend had been made.” Bergin, who knew more than a little about family law herself, pointed to sections in the act that would allow the agency to change its mind, but Warren “indicated it was not the policy of the child protection office to do so.”

The department’s official position again: “Case plans are continually assessed and are changed as new information is received, including after hours, as part of our ongoing work with children and families.”

Back in the real world, J.C. and her son — along with those who had expressed their willingness to help them — would now all have to wait the requisite official “five business days” until a judge could convene her hearing to determine K.C.’s next steps.

Until then, K.C. would remain in foster care.

Continue to “Child protection: Catch-22 all over again. Again and again… Part 2” here.


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Stephen Kimber

Stephen Kimber is an award-winning writer, editor, broadcaster, and educator. A journalist for more than 50 years whose work has appeared in most Canadian newspapers and magazines, he is the author of...

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  1. J.C. and her little son K.C. had willing helpers in that moment when Child so-called Protection would prefer to send little one off to strangers! Here’s a young woman trying to prosper and parent. Everything she learned through tumult growing up best she did, help she got and education she finished, assistance she gladly took on to learn everything for her baby’s care plus community friend with open arms to support K.C. and mom…Child Protection call-you-tomorrow message to willing and able assisting friends sounds like bureaucratic negligence. It’s bizarre, actually

  2. It is so hard to read this heartbreaking story. I am feeling such outrage at the extreme rigidity of a system ironicaly modeling the worst sort of parenting. Dare I hope for a better ending in Part 2? I fear not.

  3. A wonderful piece that demonstrates some of the trauma caused by those charged to protect children and families.