When child protection cases get delayed, who’s keeping track?

New data reveals most provinces and territories aren’t tracking or publishing length of court delays for child welfare cases.

Across Canada, most courts are neither tracking nor publishing how long it takes for child protection cases to be heard. Delays can prolong or exacerbate the pain and trauma that often comes with the removal of a child.

“I think this time to trial data is important to track and publish,” says Bernard Richard, B.C.’s Representative for Children and Youth. “All parts of the system must function in the most efficient way possible in order for delays to be kept to a minimum. We owe it to these vulnerable children and their families,” says Richard.  

In B.C., the Provincial Court’s do track delays. Time to Trial Updates give us a sense of how long families and children in B.C.’s system are waiting in limbo. The updates are published every six months, and the latest data reveals that child protection cases are the most delayed kind of case the court hears. I wanted to know, is this the case across the country?

Since child protection services are administered by provinces and territories, I reached out to courts in each region. I asked whether they’re also keeping track of how long it takes for child protection cases to be heard, and if so, where they publish this information. After compiling the responses, the lack of tracking and publicly available information on child welfare court delays became evident. 

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B.C.’s transparency is the exception, not the rule

Most jurisdictions say they give child protection cases priority when allocating court resources and scheduling trials. They say they’re meeting the timelines set down by provincial or territorial legislation.

A spokesperson for the Nova Scotia judiciary tells me their Chief Justices “say with certainty that there are not any substantial delays. They’re meeting the timelines.” She also says, the “judiciary does not track delays for these matters because trial delay to this point has not really been a significant issue.”

This is a common refrain in places with smaller populations — and smaller caseloads. Spokespeople say there’s no need to track this data because delays haven’t been a problem.

“We’re a small jurisdiction so we don’t really have an issue with that,” says Dan Cable, director of policy and communications for the Department of Justice in the Yukon Territories. “We have adequate court resources and an adequate numbers of judges.”  In the Yukon, he says, “everything gets heard within a month.”

About child protection trial delays, former Chief Judge Carol Baird Ellan says she’s “dismayed at how little seems to have developed in this area since I left the corner office 12 years ago.

In Québec, a court spokesperson tells me “the Youth Division of the Court of Quebec must respect certain deadlines, particularly for the processing of cases in which children are housed in a foster family or rehabilitation center.” She says they’re “proceeding diligently on all issues.” This is not easy to verify because “trial delays are not collected and published as in the BC.”

B.C.’s transparency is the exception, not the rule, explains Carol Baird Ellan. She sat as Chief Judge for B.C.’s Provincial Court between 2000 and 2005. “Traditionally courts have erred on the side of less public information about administrative issues,” she says. “B.C. Provincial Court was a leader in providing public information, annual reports, setting standards, and reporting to the public generally, from well before my tenure.”

Of course, just because a court is more transparent doesn’t mean it’s more efficient. Without data for all of Canada’s jurisdictions — and without data on the actual length of child protection trials — it’s hard to say whether families served by B.C. courts are better off.

Court delays prompt “major paradigm shift”

In February 2017, Manitoba’s Chief Justice Glenn Joyal announced that there would be new time limits for child protection cases heard by the superior court, known as the Queen’s Bench, in Winnipeg.

“Delays of up to 12 – 14 months in the Court of Queen`s Bench for trial dates will be no more,” he pledged in a speech last December. He outlined the court’s new model and the impetus for it in this practice direction. “Children under apprehension are negatively affected by these delays.” he wrote. “They are being denied their right to a timely trial.”

Under the court’s new model, trials must be scheduled within three to six months. Legal aid lawyer Meredith Mitchell says she’s noticed “a major paradigm shift” since the new time limits were enforced. “Everybody’s just getting far more creative on what it is going to take to bring children home safely.”

The new time limits aim to speed up the process to keep kids from drifting through foster care or group homes indefinitely. Some people fear that under this new model parents won’t be given enough time to fix whatever needs fixing, so their kids can come home. In Mitchell’s view, it’s too early to say whether the potential benefits of the court’s new approach will outweigh the risks. But something had to give.

“In Manitoba, I don’t know how we could get any worse,” she tells me over the phone. “My understanding is the apprehension rate continues to go up. It continues to be predominantly Indigenous children.”

The problems undermining our child welfare systems are complex and many. So how important is it for the courts to track how long it’s taking for these cases to be heard?

“These families are very complicated moving pictures, and things are happening whether or not the court is addressing them quickly or not,” she says. “It’s important information to have, but it’s only one fraction of the picture. The bigger picture is about resources to parents, about preventative services and about keeping children out of care to begin with.”[end]

This story was edited by Lindsay Sample. The data visualization was created by Caitlin Havlak. Discourse’s executive editor is Rachel Nixon. 

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