Let Responsible Kids Take Transit: The Appeal

Easy-to-share versions of this story, here:

- Twitter thread 
- Facebook post 
- Blog post  (an easier read, perhaps)

FULL POST:

In 2017, BC's Ministry of Children & Family Development (MCFD) told me my 5 kids can't ride the bus or be left alone anywhere until they are 10 years old.

In Fall 2019, I took the Ministry to Court.

This January, we got our ruling. We lost, but we're appealing.

Here's why:

In 2017 the MCFD intervened after an anonymous report of my 4 oldest kids taking the bus alone . I'd spent 2 years busing with them, the kids had GPS phones at all times, there was no incident, & no law or regulation against it.  

In making their decision to prevent my kids from taking the bus or being left alone at any time, the MCFD praised my parenting, saying I had gone "above and beyond" in preparing my kids to take the bus. But that wasn't enough.
The attention to this issue was immediate and overwhelming supportive. I received hundreds of positive messages and the media covered it as far away as Australia and the UK. It was front page news across Canada.

To date, the MCFD has never backed away from their 2017 decision. Social workers have repeatedly stressed to me their decision is "non-negotiable," threatening "more intrusive action" (the removal of my kids) if I didn't comply.

In September 2019, I challenged the MCFD's decision in BC Supreme Court, asserting that it:

- Exceeded the MCFD's authority (under their statute)
- Infringed on my s. 7 Charter rights

A huge thanks to my hundreds of supporters as it took all of $45,000 to do this.

In court, attorneys for the MCFD argued their decision in my case was merely a "recommendation" that I voluntarily followed. They claimed it wasn't a decision at all - and therefore wasn't judicially reviewable.
During my trial, the Judge picked up on this issue: "How does he bring this matter before a tribunal? In civilized society, when people disagree and the state does something that the citizen doesn't like, there should be recourse..."

MCFD attorneys admitted in court that if this were a decision, it would exceed the bounds of the statute that dictates the powers of their social workers. The Child, Family and Community Service Act (CFCSA) requires social workers obtain court orders for legal decisions.
However, the MCFD knows they operate from a position of extreme power. During my trial, MCFD attorney's acknowledged this, stating: "Every parent in British Columbia lives with that fear … that someone will report their parenting to the Ministry."

This power imbalance is used by MCFD social workers to impose similar decisions on countless parents, under the guise of "recommendations" that the MCFD asserts are voluntarily agreed to.

In reality, parents agree to these "recommendations," because they're afraid they'll lose their kids if they don't. A point the Judge summarized neatly during the trial, after saying I'd been "cajoled" into agreeing.
And indeed on several occasions since 2017, the MCFD made veiled threats about removing my children from my care. In one case, backing up their decision by threats of "more intrusive action" I didn't obey. The Judge referenced these threats in his January 2020 ruling.
In the January 2020 ruling, the Judge sums up the recommendations vs decision issue neatly, saying I can "hardly ignore the Director [the MCFD]" as doing so might jeopardize my parenting:

With all that weight behind it, the Judge's January 2020 ruling comes to the very logical conclusion that the MCFD's decision was indeed a legal decision imposed upon me, not merely recommendations.
But - and big BUT here - the Judge failed to evaluate MCFD's decision against the statutory powers of the CFCSA, stating only that the MCFD's decision was "reasonable."
It's crucial to note that 'reasonable' is not the test here. The CFCSA statute is. For instance, while it may be "reasonable" for me to tell you not to run a yellow light, I don't have the power to write you a ticket for it.

The MCFD's statute does not allow their social workers to make legal decisions. If the MCFD wants a legal decision imposed on a parent - with the ramifications I was repeatedly threatened with - they must get a "supervision order" from the court.
Decisions from social workers cannot be used as a substitute for proper judicial process, as they have been in my case. The Ministry had no statutory ability or power to make the decision it did.

So we're appealing! And with even greater confidence this time, because:

- We have a ruling that the MCFD imposed a legal decision on me, with ramifications if I didn't follow it

- Their decision exceeded the bounds of the MCFD's statute, as the MCFD's own attorneys admitted during the trial

Join me in fighting on behalf of all parents. Parents who are cowed into submitting to Ministry decisions - even when those decisions limit their family's legal freedoms with no recourse to challenge.

Since 2017, I've heard from many of them.

We've spent $6,000 in the appeal process (over $2K alone for transcripts of the Sept proceeding). My attorneys forecast a total cost of $15,000 for the appeal, which will be heard this Spring.

If you'd like to read the Judge Kelleher's full Reasons for Judgment, you can check them out on Canlii.