A Child and Family Services agency failed in its duty to investigate if a "devoted" Manitoba dad convicted of a sexual offence more than two decades ago was an actual risk to his kids before pulling them from his care this summer, a judge has ruled.
In a case shining a concerning light on CFS investigative methods, Court of Queen's Bench Justice Gwen Hatch has found the Cree Nation Child and Family Caring Agency lacked reasonable and probable grounds to believe the kids, 16 and 14, were in need of protection at they time they were removed from their father's care in July.
Hatch has quashed the apprehension order and ruled that Cree Nation should pay the father's court costs.
"I find on the evidence that the father is a dedicated and devoted father who has done everything possible to help his children with the challenges of being high-needs children," Hatch said.
It was CFS who placed his kids with him in 2003 after he and their mother split.
In the decade that followed, Hatch found the father has maintained a stable relationship with his new common-law wife and gone to lengths to assist his kids, who have done well despite having developmental challenges. Since they were apprehended and placed in separate foster homes they had "regressed," said Hatch.
The father had been on the radar of CFS over the years after he requested some support from a different agency. He also had a support worker visiting his home in 2011.
"At no time did any of these agencies ever find concern over the father’s parenting of the children," Hatch stated.
Despite his positive track record, CFS moved immediately to apprehend his children after he applied to become an official place of safety for a grandchild earlier this year.
It came to light he had been convicted 21 years ago of sexual interference and was listed as "high-risk" on a criminal record check that came back as part of the application process. He served 150 hours of community service work, a day in jail and probation to follow.
Based on this information alone, the agency moved in to take the man's kids without any further investigation or discussion, Hatch said.
A Cree Nation supervisor testified at a recent child-protection trial the reason for the apprehension was because of the "high-risk" finding "as they did not know the details of the charges at the time," Hatch's written decision states.
The charge involved the father, in 1992, having sexual relations with a girl he says he didn't know wasn't of legal age. "He made a mistake; he was ashamed of it; and he never did it again," Hatch said of the dad's testimony on the issue.
"The supervisor testified that Cree Nation has not returned the children because it was deemed a high-risk and that she is 'thinking of the liability issue against the agency,'" Hatch wrote.
The agency cited no other concerns about the father, and his kids didn't raise any red flags when they were interviewed post-apprehension.
The agency acted without enough information to show the kids were in need of protection, Hatch said. That's despite the "low onus" on CFS to demonstrate they've met their legal burden as set out in the Child and Family Services Act.
"Upon receiving the high-risk assessment, Cree Nation had a duty to investigate to determine what the circumstances were respecting the charges and how the children were doing in the care of their father," the judge wrote.
"They had a duty to investigate the circumstances to determine whether they had reasonable and probable grounds to believe that these children were in need of protection and that the children’s lives, health or emotional well-being were endangered by residing with their father," Hatch said.
"Cree Nation failed in its statutory duty."