Nunavut child act violates charter: judge

Parts of Nunavut's Child and Family Services Act that deal with removing children from their homes violate Canada's Charter of Rights and Freedoms, according to a judge's ruling released Wednesday.

Nunavut court Justice Robert Kilpatrick has given the territorial government one year to change the act, which currently allows social services officials to hold apprehended children for up to 135 days before a hearing must be held to decide if removing those children from their families was justified.

"The impugned legislation does not provide any mechanism for a prompt post-apprehension screening of the grounds for child apprehension by a judicial officer," Kilpatrick's written ruling states in part.

The case was started by a Nunavut parent — identified in Kilpatrick's ruling only as "P.E." — whose children were taken away by a child protection worker in February 2009.

P.E.'s children were put in the care of the territorial government until around October 2009, when a hearing was held and the children were ordered returned to the parent.

The parent then filed a lawsuit against Nunavut's director of child and family services, arguing that apprehending the children for so long violates the charter.

Social worker shortage cited

In court, Nunavut government officials blamed a chronic social worker shortage for a longer period of time needed between a child apprehension and a hearing.

"It is said that worker vacancies, high caseloads, and geography interfere with the government's ability to meet tight filing deadlines and other legal requirements associated with court proceedings," Kilpatrick wrote in his decision.

"The operational difficulties plaguing the government of Nunavut's Department of Social Services cannot justify or excuse non-compliance with a constitutional requirement to ensure procedural fairness, however," he added.

Under the Child and Family Services Act, an application for a hearing must be made with 45 days after a child has been apprehended.

The hearing must take place "not later than three months after the first appearance unless a court orders otherwise," according to the act.

That means under the current act, children can be held in government care for up to 135 days — about 4½ months — between the date they were apprehended and the date of a hearing.

Law not amended earlier

By comparison, most other Canadian provinces and territories allow anywhere from five to 37 days between a child apprehension and a hearing.

The judge noted that in 2000, the Supreme Court of Canada declared that "there must be a fair and prompt judicial screening of the grounds for apprehension of a child."

In the wake of the top court's decision, other provinces and territories "moved to amend their child protection legislation to ensure charter compliance," Kilpatrick wrote.

"Nunavut, however, did not do so," he added.

Furthermore, Kilpatrick found that Nunavut's Child and Family Services Act does not require a judicial screening of the grounds for removing a child.

"There is only one hearing contemplated by the present Child and Family Services Act. This is the hearing to determine the merits of the director’s overall application," he wrote.

Kilpatrick has now given the Nunavut government one year to fix the Child and Family Services Act or have parts of it declared invalid.

The ruling comes as the territorial government is in the early stages of a full-scale review of the act.