The following is the verbatim Affidavit, that caused a Family Court Judge to order a child protection agency to pay the family’s legal costs, after unnecessarily bringing them to court. Not included in this article are; the agency’s name, the children’s name, address and service providers and the referenced exhibits. This is only a victory in Family Court. The Criminal Court matter continues.
1. My name is Kelley Denham and I am the mother of (the children) and am married to their father, Derek Flegg and we have lived at (street address) in Smiths Falls since 2013. I am also a Registered Social Service Worker, in good standing with the College. As a member of the College, I have ethical obligations such as the Continuing Competency Program, which also requires I serve in many volunteer roles. I am also employed for the last four years at a group home for women with mental illness in Ottawa. I completed my Social Service Worker Diploma at Algonquin College, Perth in 2015 with a GPA of 3.9 and top awards.
2. There have been five previous referrals to (the agency,) three of which closed on intake.
3. In 2009, I was charged with assault and received a conditional discharge, on the condition that I successfully complete a 12-month probation. This probation was completed, without incident or additional charges. I also completed the STOP program as a condition of that probation. I have had a clean criminal record check for vulnerable sectors on file for the last four years at my place of employment/volunteer work.
4. Our first involvement with (the agency,) in 2009 was because of the assault charge and was voluntary. (The agency) said that even though the children were not present during the assault, that their involvement was standard given the nature of the charge and age of the children. We maintained monthly visits until (the agency) discontinued service. The file closed amicably.
5. In August 2015, (the agency) sought a supervision order through the courts as we did not agree to sign 14 consent forms that would allow the agency to speak with our various service providers. They ultimately withdrew the application in Dec. 2015, after we provided them with a doctor’s note, stating our children’s medical needs were being met, (see exhibit A). (The agency) later apologized for the service gaps and funding shortfalls that led to our objectional experience, (see exhibit B).
6. On Sept. 27, 2016, at 2:30pm I received a call from my husband, Derek Flegg, that our two-year-old son was missing and that the police were coming. I arrived at the house minutes later. My husband told me that he had just gotten our son ready to go pick up the other kids from school. He said he brought the stroller out the front door. He didn’t lock the door when he came back in. Our son was watching TV. He went to lock the back door and get our son’s shoes. Our son wasn’t watching TV anymore. He called him and searched the house. Then he realized he didn’t lock the front door when he came back in. Our son must have slipped out in the minutes it took to lock the back and get the shoes. The police arrived minutes after me. I left to drive around and search the streets. By 2:45pm, our son was found, just a few blocks away. It was the worst day and the best day, all in 15 minutes. Sgt. Empey told me that they would have to notify the Children’s Aid Society. In a Freedom of Information request received, she said, “Not that it’s obvious to me that you did anything wrong, slight inattentiveness, but it’s protocol,” (see exhibit C). Sgt. Empey told me that (the agency) would likely just give me a phone call. I later wrote a letter to the local newspaper, thanking police for their quick response. They picked up the story, (see exhibit D).
7. On Oct. 3, 2016, Sun Wai Culbreath and another female unknown to me, from Family and Children’s Services of Frontenac, Lennox and Addington (FACSFLA,) showed up at my door unannounced while we were on our way to pick up our children from school. She wanted to see the house and told me that police had called the house “hazardous” and “unsafe.” I ensured her that wasn’t the case. I told her we didn’t have time right then, as we had to pick up the kids from school. She told me she would be back either later that night or early the next morning. We agreed, recognizing the mandate of the agency but also recognizing and unprecedented conflict, which caused this agency to respond to the referral instead of our local agency.
8. On Oct. 4, 2016, Ms. Culbreath and a male named Josh arrived at the house at 9:30am. This entire visit was recorded and is available at anytime. We let them into the house and let them see everything they wanted to see. I asked her if she had any concerns about the house and she only mentioned that we needed to purchase a carbon monoxide detector. I asked her if the house was okay and she replied “yes.” She then wanted to schedule a time to come back and meet my other children, as they were at school during this visit. She said this needed to be as soon as possible. I said she could come back later that day. She then thanked me for cooperating.
9. At 3:45pm, that day, Ms. Culbreath and Josh came back to the house. This visit is also recorded. We had already purchased the carbon monoxide detector and had it installed. Much of this visit occurred in our large, fenced in backyard. Ms. Culbreath was concerned about a couple holes in our deck. I explained that we were in the middle of fixing the deck, but would cover the holes immediately, which we did, (see exhibit E). I asked if there were other concerns. She would not answer my question. I asked her five more times and she did eventually say that she had no immediate concerns. I asked if we could have any and all concerns, and the basis for them in writing. She replied “Yes, that I can do. I can do that and I will do that.” I expressed that during our last involvement, the agency took 41 days to give me this important information. I stressed that it is impossible to address the concerns if the agency would not tell me what they were. She ensured me that she would do this promptly. Ms. Culbreath asked if we would be willing to sign consents forms. I told her, given my last experience with the agency, that no, I was not willing to sign consents. She then said, ”So you’re not going to cooperate?” I explained that I did want to cooperate, that I understood and respected their mandate, but I was just not comfortable signing consents and that the agency had found a middle ground last time that did not involve signing consent forms. Later in the visit, Ms. Culbreath asked what we were willing to do. My husband responded that we were willing to do anything that didn’t involve signing anything. Ms. Culbreath responded again, “So you’re not going to cooperate?” Ms. Culbreath agreed to calling me on the phone the following week. This entire visit was recorded. Ms. Culbreath never called me.
10. On Oct. 31, 2016, nearly a month after our last contact, Ms. Culbreath and Josh showed up at my door unannounced again. This visit is also entirely recorded. I was doing last minute Halloween errands as my four children were trick-or-treating that night and I did not have time for a visit, and asked that they schedule a visit instead. I asked why Ms. Culbreath never called me back. She did not answer. I asked if she had the concerns in writing like we agreed. She said she did not. She did have a letter that stated they were seeking a supervision order through the courts as I “refused to cooperate” and insisted that they take me to court, (see exhibit F). This is false. I recorded all visits and the only thing I refused to do, was sign consent forms. I was actually adamant about not going to court, and continually asked what I could do to avoid court. I told Ms. Culbreath this, and also told her I would be happy to get the documentation she needed to show my children were well supported. I told her that I would even make the drive from Smiths Falls to Kingston to show what current records and assessment of the children I had. Ms. Culbreath was agreeable to this and we scheduled an appointment for Nov. 7, at the Kingston office. I asked if she could have the concerns in writing for me at this appointment. She said she would try to get this information to me before Nov. 7, so I would have time to review and prepare.
11. On Nov. 7, 2016, I attended the FACSFLA office in Kingston. This meeting is also entirely recorded. I had a pile of current documentation regarding the care of my kids. I asked if Ms. Culbreath had the concerns in writing that I’d been asking for, and that she had said on video many times that she would provide. She told me no and that she thought that would “be putting too much pressure” on me. She also told me that she had other concerns that she had not told me about on the Oct. 4th visit. Ms. Culbreath told me, on video, that she had purposefully withheld some of her concerns. I asked her how I was suppose to address the concerns if she would not tell me. I was then informed that an application for a supervision order had already been filed on Nov. 4, 2016 and that I had a court date for Nov. 17, 2016 in Perth, and that would be my chance to review and address the concerns. I asked why I hadn’t been served yet, as this date was only 10 days away and it did not leave me much time to prepare. She explained that they were having difficulties in finding a lawyer in Perth but that they would hurry as quick as they could. I asked if they could just give a copy to me now while I was at the office and Ms. Culbreath said no. I also asked why Ms. Culbreath had not called me as she indicated she would on the Oct. 4th visit. Ms. Culbreath told me more urgent matters had come up over the month and that she did not have time.
12. At this point, we have tried to work and engage the agency in a way that protects our children’s right to feel safe and secure and not upset the routine that is so important to our son’s special needs. Information has not been forthcoming, which is of great concern when dealing with an agency that has the power to apprehend children without a warrant at first. Our requests for information so that we may better understand what we need to do to show our children are not in need of protection, are continually met with threats of court orders. We are hesitant because of our previous experience with (the agency), and because of the pending criminal matter where (the agency) is the complainant. This issue cannot even be commented on, under the direction of our criminal lawyer. I am happy to give oral testimony to the Judge alone, on any impacts this may or may not have, on our children. We recognize the agency must ensure the safety of children, which they did twice on Oct. 4, 2016. We recognize our error in forgetting to latch the front door and have since installed more latches and safeguards. We immediately addressed concerns with having a CO2 detector and fixing the small holes in the deck. The secondary concerns, noted by Ms. Culbreath, could have easily been addressed had Ms. Culbreath returned calls and followed through with information she promised to provide. Our children are thriving, happy, silly kids. They are actively involved with every possible service they could benefit from, (see exhibit G). The primary concerns of the agency were addressed and demonstrated promptly. Secondary concerns exist, based on speculation and a refusal of the agency to accept 3rd party documentation out-of-court, that would extensively demonstrate otherwise (see exhibit G).
13. Given that Ms. Culbreath made no attempt to return calls, schedule an appointment, and intentionally withheld the protection concerns from the parents, it would appear that this motion was rushed to justify the agency not meeting the Child Protection Standard of the investigation not exceeding 30 days. This Standard also says, however, never to rush an investigation for this reason. This particular standard is also used to measure the agency’s level of performance to the Ministry. Untimely responses and lack of cooperation to provide any information at all from Ms. Culbreath or the agency created unnecessary assessment delays and for this reason we do not believe the agency is acting in our children’s best interest, but rather the interest of the agency. The parents always act in the children’s best interest and this motion is not in the children’s best interest, nor was it made with it in mind. The parents thoroughly know the supports of their children and what works best for them and it would be dangerous for any other person to control/order services. The family is involved with (list of service providers). The file shows a pattern of well-cared for children, closed files and an ability for the parents to recognize and address concerns promptly. The parents, and not the agency, do what is in the children’s best interest and any court order made against the parents would therefore not be in the children’s best interest.
14. I also have big concerns with the proposed conditions of this motion. Where most conditions are things we dispute that we are doing already, of great concern is condition F)
Ms. Denham shall abide by all of her criminal court release conditions and provide the agency with any requested updates in terms of her criminal court proceedings.”
The agency is the complainant in this criminal court proceeding and a court order that says I must update the agency with any requested info regarding this, may severely impact my ability to have a fair, impartial trial, which would ultimately hurt my children.
15. Given that no immediate concerns are present, and this is agreed upon by both parties, I ask the Judge to throw this motion out. The situation is unprecedented and much more time and careful consideration is needed before any court order can even be considered to ensure the children’s needs remain paramount. Also, motions made to establish a false status-quo are seen as child abuse by many court Judges in Ontario, as the only purpose of a motion should be to keep kids safe during the court process. This motion was served on me on Nov. 9, 2016, leaving me only a couple of days to review, dispute, serve, file and retain counsel for a hearing date only seven days away. The motion is also unnecessarily intrusive and is not the least intrusive means of ensuring child safety. It is a very lengthy document and I have largely only disputed what appeared to be the agency’s biggest concerns. Much more disputed information on historical involvement can be provided by my oral testimony upon the Judge’s request.
16. I swear that all this information is true and based on fact.
The following is a true account of a child protection hearing for a motion made against us, the parents. This case is a bit unusual as the child protection agency is the complainant in a high-profile criminal court proceeding against the parents. To avoid a conflict of interest, the agency contracts the investigation to a sister agency.
They call us, the parents, to courtroom one.
First, the agency lawyer asks us to say, on record, that we are not recording. She says they asked us to cooperate at the first home visit. She says we would not sign consent forms and that we would not cooperate. There is a second home visit where she says we refused to cooperate again. There was a third visit, at their office, which she says we secretly recorded. All videos, she says, have now been posted to the internet. She says we served a substantial amount of documentation in our responding materials that satisfy the agency’s concerns. She says it’s unfortunate that instead of sitting down and discussing the children, that we, the parents, “shoved a camera” in the workers face and refused to cooperate. She advises they are withdrawing the application and motion as the parent’s responding materials have addressed the agency’s concerns.
Our lawyer immediately requests that we be awarded court costs, as the agency had brought the matter to court unnecessarily. He points out the letter that the agency couriered to us the day before court. It outlines that not providing us a letter with the concerns was their “anti-oppressive intent” to avoid putting “too much pressure” on us, the parents. He points out that court could have been avoided, had the agency provided us with a letter stating the concerns, so that we could address them out of court. We had been requesting this information for over a month.
Our lawyer hands the couriered letter to the Judge. The Judge clarifies the request for costs by our lawyer in the amount of $750. Our lawyer explains that there was an alternative to court, citing another letter we received from the agency during our previous involvement. This letter was a result of the complaint we had made about the service we received from the agency. Our lawyer refers to Exhibit B in my affidavit, where the letter could be found.
The agency lawyer explains that they are a different agency, acting only as agents for the local child protection agency. She says she had no knowledge of this letter.
The letter clearly outlines that we, the parents, would have the concerns in writing, should the agency ever become involved with our family again.
The Judge reads this letter as well.
Our lawyer explains that the agency didn’t provide any communication of the protection concerns. Instead, they just brought the family to court. The family had no choice but to respond in court.
The agency lawyer says she had no knowledge of what the previous letter relates to. She said she knew nothing about the family’s history before this referral. She also says this was done intentionally to prevent any bias or conflict with the investigation.
She goes on to say that while the parents were “shoving” a camera in the worker’s face, they were also saying that they were refusing to cooperate and that we insisted they bring us to court. The agency lawyer says it would be inappropriate to award costs to “people largely the author of their own misfortune.”
Our lawyer responds, pointing out the 107-paragraph affidavit sworn by their agency, composed almost entirely of inaccurate historical information. He respectfully submits that if the agency did not know of the letter, they ought to have known.
The court takes a twenty-minute recess.
When court resumes, the Judge summarizes both sides of the case. He rules that it is reasonable to award the costs of court to us, the parents, in the amount of $750.
Court is adjourned.
Today is a beautiful day in the neighbourhood for us, and any Ontario family. Most people assume that when a family is brought to Family Court, that of course, they will have a chance to have their side heard. Unfortunately, this just is not true. Families are typically served a week before the hearing, leaving only a couple days to review, dispute, serve and file a counter argument. Even if the parent meets the strict deadline, a legal truism in Family Court is that if the Judge doesn’t have time, or just doesn’t want to read the parent’s responding material, he won’t. The Judge will err on the side of caution, and rule in favor of the Children’s Aid Society. This may include the passing of an intrusive motion that does little to help children and supports a “fishing trip” against the parents, causing undue stress and conflict within the family.
With the above ruling, my hope is that more Ontario Family Court Judges will read and consider the parent’s responding materials before making some prima facie ruling, based solely on the words of a broken child welfare system.