B.C. government backtracks from legal fight with children's rep
Credit to Author: Rob Shaw| Date: Fri, 22 Nov 2019 00:50:01 +0000
VICTORIA — B.C.’s NDP government is backing off a legal fight against the independent children’s representative, while offering policies to keep future disputes from ending up in court.
Attorney General David Eby said he regrets that the representative for children and youth, Jennifer Charlesworth, had to sue government to get documents about whether children have had proper legal representation in family court.
Charlesworth wanted files from a family advocate program that the previous Liberal government ended 17 years ago. That program gave legal representation to children involved in family law disputes, like custody battles.
She requested the case files as part of a report she’s preparing into whether children have their voices properly heard in family court matters, and the high incidence of self-harm and suicidal behaviour that can result if they do not.
The B.C. Supreme Court ruled in her favour on Nov. 6.
“We are not appealing the decision,” Eby said Thursday. “I certainly support the RCY (the representative) looking at whether children are self harming because they don’t have the opportunity to be heard in court. It sounds like an important issue to me. And I think that it’s just unfortunate that we didn’t have a protocol in place so that we could have avoided court.”
Charlesworth said she’s pleased the court battle is over.
“He’s absolutely right that we’ll have to find ways to avoid this kind of litigation,” she said. “There were many efforts made to avoid litigation in this case, but it ended up basically having to go to court because we have different opinions of how our legislation was interpreted. Obviously, the B.C. Supreme Court ruled in our favour.”
The case drew accusations of hypocrisy against the NDP, which as the opposition party in 2010 chastised the Liberal government for similarly fighting the child watchdog in court. In both cases, the independent child and youth office won decisive court rulings.
The government initially questioned whether Charlesworth’s mandate permits her to examine family law issues. The court reasserted that the children’s representative has a broad legal mandate to investigate child issues regardless of the area.
Eby said he’s asked his deputy attorney general to create “one last safety valve, essentially, before she goes to court in the future,” where top officials, the minister, and the representative meet face-to-face to look for solutions.
“The issue to my mind is, I don’t think that it’s helpful from the perspective of public confidence to see my office and the RCY in court if we can avoid it,” said Eby. “I’m actually asking for a favour of her. I’m asking as the last step before she goes to court, that she calls me and that we see if we can work it out and avoid court.”
The dispute appeared mainly confined to the representative’s staff and government lawyers.
“We didn’t have a high level way for the RCY to reach out to me and to my office, not just to my staff, and say, I, you know, I’m on the verge of filing a petition,” added Eby. “The fact that she didn’t feel that she could do that, that there was no sort of high level circuit breaker for us to avoid court, is a real problem.”
That would be useful, said Charlesworth. “I think the safety valve is that we should have bumped it up to the attorney general directly and said, ‘Do you really want to go this way?’”
Opposition Liberal MLA Stephanie Cadieux said Eby’s excuses are unbelievable.
Cadieux was children’s minister for five years under the previous government, when the Liberals were defeated in court by the representative’s office over access to cabinet documents. Several high-profile NDP MLAs, who are now cabinet ministers, roundly criticized the government for wasting money that could have better been spent on children.
“It’s good they are backing away,” said Cadieux. “I think she should have access to what she needs to do her job. And I do think it’s hypocritical given I know I was there for five years and I can’t think of one time where the NDP didn’t think the representative should have unfettered access to anything at any time that she wanted.”