The Commission has identified a number of high priority cases for legal review. In addition, the Commission also receives requests for legal review from individuals in the community. When a case has been identified as being high priority or if a legal review is requested, the Commission obtains all of the legal documents used to make a decision in the case from the child protection agency or the court.
The Commission’s initial review of cases is conducted by experienced commission lawyers who then provide the Commissioner with an opinion. The Commissioner reviews the opinion provided by the lawyers and decides whether the testing conducted by the “MDTL” had a substantial impact on the legal case. Sometimes, the Commissioner may require more information before making a decision. In those cases, the Commission’s Lead Counsel will make efforts to obtain the information required.
If the Commissioner determines that the testing had a substantial impact on the case, the Commission will provide the affected persons with the option of retaining a lawyer to discuss and pursue any possible legal remedies available. In some cases, other services such as counselling or alternative dispute resolution may also be offered. Legal Aid Ontario is helping the Commission with the management and administration of legal services.
The Commission’s rules and procedures relating to its legal review process are outlined according to the Public Inquiries Act and pursuant to Order in Council 4/2016.
Cases Reviewed by the Commission
The Commission is committed to reviewing individual high priority child protection cases. Initially, the Commission identified six categories of cases which are considered “high priority”:
- Cases where a child had been placed for adoption and the adoption was finalized during the period December 17, 2015 to February 22, 2016;
- Cases where a child has been placed for adoption but the adoption has not been finalized;
- Cases where a custody order under section 57.1 of the CFSA was made during the period December 17, 2015 to February 22, 2016;
- Cases where a child has been made a Crown ward and is in the care of a society;
- Cases where a child is a Crown ward and is in the care of a Society and an application for a custody order under section 65.2 of the CFSA is pending;
- Cases where an application is pending in court to make a child a Crown ward or for a custody order under section 57.1 of the CFSA.
In addition to the identified “high priority” cases and after consultation with Indigenous communities, the Commissioner also ordered Children’s Aid Societies to identify cases where test results from the Motherisk Drug Testing Laboratory (“MDTL”) were relied upon and where a customary care agreement or kinship arrangement was ultimately made.
Finally, if an individual calls the Commission helpline or has spoken to the media about his or her involvement with the “MDTL”, the Commissioner requests that person’s file from the relevant child protection agency in order to complete a legal review.
The Commission’s mandate is time-limited. In an effort to balance the Commission’s need to run efficiently, complete its mandate within a reasonable time, and to support affected persons, it is impossible for the Commission to review every single case involving a positive test result from the “MDTL”. It is estimated that there were upwards of 9,300 positive test results produced by the “MDTL”.
Further complicating the Commission’s ability to contact each person that has been tested is the fact that the “MDTL” had flawed record-keeping practices. The “MDTL” ’s database does not include each person who received a hair strand test at the facility. Finally, due to the number of years that – the “MDTL” had been in operation, contact information on file is no longer current or accurate. Therefore, it is not possible for the Commission to review or contact each case with a positive test result.
Notification about the Results of the Legal Review
After a file review, if the Commissioner concludes that the testing conducted by the Motherisk Drug Testing Laboratory (“MDTL”) had a substantial impact on the case, the Commission will notify all affected persons.
If the Commissioner concludes that the “MDTL” tests did not have a substantial impact on the case, the Commission will notify the relevant child protection agency and any person who requested the review.
The Commission received expert advice that it is important for children to know their histories. When we notify the child protection agency, we enclose letters to the children who were involved in the case. The letters explain the reasons why the Motherisk Commission was established, our legal review process and what we found in their particular cases. We ask the agency to put these letters in the children’s files so they will have this information if they choose to search for their histories in the future.
The Commission will not notify any other persons involved in the case where the Commissioner has concluded that the testing did not have a substantial impact on the case. If a person whose case has been reviewed later contacts the Commission, the Commissioner will inform the person of the decision and offer that person access to appropriate supportive services.
For further information about the Commission’s notification process, please consult the Commission’s rules and procedures here.
Appeals of the Commissioner’s Decision
If an affected person does not agree with the Commission’s decision, he or she can request a reconsideration of the decision within 30 days from the day that he or she is notified of the decision. The person can provide any other information that he or she believes is relevant to the Commission. One of the Commission’s lawyers will then review the file again together with the new information.
For further information about the Commission’s appeal process, please consult the Commission’s rules and procedures here.
Alternate Dispute Resolution/Mediation
Where the Commission finds that test results from the Motherisk Drug Testing Laboratory (“MDTL”) had a substantial impact on a child protection case, legal supports may be offered to affected persons. Such legal supports may include referrals to a lawyer. The lawyer will then work with his or her client to discuss the most appropriate way to move forward towards a possible legal remedy.
In addition, the Commission will offer mediation to affected persons. Mediation is an alternative dispute resolution process outside of court. A skilled mediator can often help people in emotionally charged disputes reach mutually agreeable solutions without going to court. The Commission will be providing trained mediators should the parties agree to engage in this process.