Former P.E.I. director of child protection comes in for 'substantial criticism' in Supreme Court ruling

·9 min read
A Supreme Court of Canada ruling in a P.E.I.-Alberta case has reaffirmed that biological parenthood is only one in a number of factors to be considered in child custody decisions. The same ruling also found fault with how a senior P.E.I. bureaucrat handled the case.  (Adrian Wyld/The Canadian Press - image credit)
A Supreme Court of Canada ruling in a P.E.I.-Alberta case has reaffirmed that biological parenthood is only one in a number of factors to be considered in child custody decisions. The same ruling also found fault with how a senior P.E.I. bureaucrat handled the case. (Adrian Wyld/The Canadian Press - image credit)

Prince Edward Island's former director of child protection comes under "substantial criticism" in a landmark Supreme Court of Canada child custody ruling involving a boy now living in southern Alberta, says a law professor familiar with the case.

Rollie Thompson, who lectures on family law and child protection issues at the Schulich School of Law at Dalhousie University, says the department needs to engage in some self-reflection over the case.

"People need to take a hard look at the actions in this case, and other cases of the [former] director of child protection," Thompson said in an interview with CBC News.

"In this case, the director removed the child from the maternal grandmother and sent the child to the natural father who had not much — well, no relationship with the child at first — and they plainly put their thumb on the scales in favour of the natural father and against the maternal grandmother."

He said that approach "was rejected as a view by the trial judge and by the Supreme Court."

Wendy McCourt was Prince Edward Island's director of child protection at the time of the events described in the Supreme Court of Canada ruling.

She has since retired.

Province of P.E.I.
Province of P.E.I.

CBC News tried to reach her for comment about her actions as described in the ruling, but she did not return phone calls.

Decisions not made 'lightly'

Officials with Child and Family Services said they cannot comment on specific cases, when CBC News requested an interview.

But an emailed statement said: "The cases and families that we work with often have multiple levels of complexity and our staff do not take any decisions involving children and families lightly.

"These decisions are not made in silos, they are made with input from those connected personally and professionally with the child(ren) and family and in conjunction with professional clinical judgment that is always grounded in the best interest of the child."

This isn't about what the parents did. This is about what the director of child protection did. And as a consequence, they're accountable to the courts and they are also accountable to the public and to the elected politicians. — Prof. Rollie Thompson

Thompson challenges the province's statement that it cannot comment publicly on the case because of privacy issues.

"The director of child protection is a public official, acting in a public capacity, and at some point they cannot hide behind privacy and confidentiality arguments.

"This isn't about what the parents did. This is about what the director of child protection did. And as a consequence, they're accountable to the courts and they are also accountable to the public and to the elected politicians.

"So I'm tired of hearing them hide behind that argument," said Thompson.

Father didn't know of child's existence

The case that the Supreme Court of Canada ruled upon is simply referred to as B.J.T v J.D.

Those involved cannot be named in media coverage to protect the identity of the child, who for a time was in the care of the province.

The unanimous ruling from Canada's top court was issued in December 2021, but the written reasons for the decision came out only this month.

Wayne Thibodeau/CBC
Wayne Thibodeau/CBC

The child's grandmother, who had been present in his life since she moved from Alberta to Prince Edward Island shortly after his birth in 2013, was caring for him because his mother's mental health condition had worsened.

The boy's biological father had been briefly married to the mother but didn't know she was pregnant with his child when she relocated to P.E.I. after their separation.

After McCourt's office contacted him in February 2019 to serve legal papers — an action that let him know for the first time that he was a father — he wanted the boy to live with him in Alberta. The maternal grandmother argued that she had formed a bond with the boy and should continue to care for him on the Island, where other members of his mother's family lived.

And indeed, a court order recognizing the grandmother's legal status as a "parent" became effective on July 2, 2019, despite the opposition of the former director of child protection. Meanwhile, the father was still fighting for custody.

Initial ruling in case overturned

P.E.I. Supreme Court Justice Nancy L. Key, who heard all the facts and arguments in the case, ruled in 2020 that the child should live with his grandmother.

"The hearing judge found that the grandmother would promote the child's relationship with the father and his family, but the father would not ensure the child would have a meaningful relationship with his family in Prince Edward Island unless ordered by the court," Supreme Court of Canada Justice Sheilah Martin wrote on behalf of the full court in the lengthy ruling.

CBC
CBC

But a 2-1 ruling from the province's appeal court overturned that 2020 decision and sided with the father. Chief Justice David H. Jenkins was the dissenting voice.

The case ended up in the Supreme Court of Canada, which sided with Key's original decision and ruled the child should live with the grandmother on the Island.

By then, the boy had been living with his father in Alberta for more than two years — because McCourt had authorized a three-week visit that turned into an indefinite stay.

Apprehended on summer camp trip

The Supreme Court of Canada justices were highly critical of that action, among others.

The ruling says the boy "left his grandmother's home for camp like normal, but he was apprehended by the director who has never allowed him to return. The director instead chose to place [the child] with foster parents, who were strangers to him."

Wayne Thibodeau/CBC
Wayne Thibodeau/CBC

Four weeks later, McCourt sent the boy to Alberta to stay with his father. "The trip, which began on August 8, 2019, was to last three weeks, but [the child] has never returned to P.E.I."

That is still the case. Despite the Supreme Court of Canada ruling in December, the boy has still not been returned to the grandmother in P.E.I.

The courts also raised concern about the director "quickly" agreeing with Dr. Patricia A. Petrie, a psychologist hired by the father, that the child should live with the father.

[The psychologist] moved from being objective and nonpartisan to being an advocate for [the father].  — P.E.I. Judge Nancy Key, as quoted in the Supreme Court of Canada ruling

"When the psychologist stepped outside of commenting on the father's ability to parent and opined about where [the child] should ultimately live, 'she moved from being objective and nonpartisan to being an advocate for [the father],'" the ruling said, quoting Key's findings.

It said the psychologist's involvement with the father and his family "may have clouded her view that any other parenting arrangement for [the child] would have been equally as beneficial."

The ruling pointed out that Petrie had never met the boy's mother or grandmother, and the little knowledge she had of his family on the Island came from staff working under the former director of child protection.

Tried to 'tip the scales'?

The Supreme Court of Canada ruling also questioned the impartiality of the former director of child protection.

"The hearing judge found that the director made a series of decisions in an attempt to 'tip the scales' in the father's favour," Justice Martin wrote.

She noted that Key had found "the director removed [the child] from his grandmother's care and placed him in foster care 'for flimsy reasons'. She also observed that the director supported the father's parenting plan before having ever met him and even before father and son had even been introduced to each other."

Wayne Thibodeau/CBC
Wayne Thibodeau/CBC

This was despite "the significant progress" the boy had made while under his grandmother's day-to-day care for more than a year.

"The 'unstated goal' of the director was to assist the father in becoming [the child's] everyday parent," the ruling said.

Key did not shy away from speculating on a possible reason, writing that if the boy moved to Alberta, "the director would conceivably never have to deal with [his mother] again."

Every effort is made to adhere to timelines within the Child Protection Act. Unfortunately, there are aspects of timelines that the department cannot control once a case is before the court. — P.E.I. Child and Family Services branch

The hearing judge also found the director's conduct "effectively tied the court's hands, preventing it from making a comprehensive custodial order with respect to [the child's] future."

Finally, Key's written ruling says the director "over-held" the child "and breached the timeline prescribed under s.41 of the Child Protection Act."

In a statement to CBC News, P.E.I.'s Child and Family Services branch said: "Every effort is made to adhere to timelines within the Child Protection Act. Unfortunately, there are aspects of timelines that the department cannot control once a case is before the court."

Contempt of court motion dismissed

Kelly Peck took over as P.E.I.'s director of child protection in January 2021.

The department would not say whether any disciplinary action was taken against McCourt before her retirement from the position, telling CBC News, "Any and all other human resource matters are internal matters which are not discussed with the public or media."

The statement did add: "There was a contempt motion made by one of the parties involved against the director, which was dismissed by former P.E.I. Chief Justice [Jacqueline] Matheson in finding that the director was not in contempt of court."

Jean Laroche/CBC
Jean Laroche/CBC

Thompson said he is, unfortunately, not surprised by the actions of child protection services in this case. But "we all should be," he said.

"There's just so many steps that were taken by the director that were open to question, and the courts questioned them," said Thompson. "In this case, the child was in their care, and without going back to court, they simply sent the child out to Alberta to the natural father.

"That's something that was a significant step and one would have thought you would want to check that with the courts before you did it."

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