The commission has now identified 24 cases in which flawed drug and alcohol hair tests performed by Sick Kids lab were a key factor in removing children from their families — and the number of cases is expected to grow.
Commissioner Judith Beaman gave an update Monday at the halfway point of the Motherisk probe’s two-year mandate. “This fiasco didn’t only affect children, but families and siblings and communities,” she said. (RENE JOHNSTON / TORONTO STAR)
A probe of child protection files involving flawed drug and alcohol hair tests performed by the Hospital for Sick Children’s Motherisk lab has now identified 24 cases in which the results were a key factor in removing children from their families.
While that represents a fraction of the more than 500 “high-priority” child protection files the Motherisk Commission has so far examined, the number is set to rise in the coming months as an additional 1,200 cases are targeted for review.
The update, delivered by commissioner Judith Beaman in a Toronto courthouse on Monday, comes at the halfway point of the commission’s two-year mandate. It is an exercise that has revealed the scope of the damage caused by Motherisk’s faulty tests, she said.
“A lot of harm was created by the … misuse of these tests, and this fiasco didn’t only affect children, but families and siblings and communities,” she said. “Mercifully, we have found a very small handful of cases where the testing played a determinative role, but even 24 families affected is too many.”
The latest figure adds seven new cases to the total since the commission gave its last update, in November.
A Star investigation exposed questions about the reliability of Motherisk’s hair tests in late 2014, after an Appeal Court decision cast doubt on the use of the results in a 2009 criminal case involving a Toronto mother. The province established the commission on the recommendation of an initial independent review, led by retired judge Susan Lang, who found Motherisk’s hair tests were “unreliable” and “inadequate” for use in child protection and criminal cases.
Throughout the scandal, family lawyers have been among the most vocal critics of the Motherisk lab and of the ubiquity of drug and alcohol hair testing in child protection cases in general.
In its submissions to Lang’s initial review, the Family Lawyers Association said hair testing was used in virtually every child protection case in Ontario where there was a “mere suspicion” of parental drug abuse, and that Motherisk “touted itself as the laboratory of choice for hair drug testing for litigation purposes.”
Sick Kids, which initially defended the reliability of Motherisk’s hair tests, shuttered the lab in 2015 amid an internal review, and issued a public apology. Lang would later conclude that Motherisk’s tests “fell woefully short of internationally recognized forensic standards” and Sick Kids failed to provide meaningful oversight of the lab.
The commission is now identifying cases in which Motherisk tests played a significant role. It is working with affected families and children’s aid societies to provide counselling and legal funding and, in some instances, facilitate reunification.
Yet these are complex cases involving some of society’s most vulnerable families, for whom simply reversing a decision to remove a child may be neither practical nor advisable.
The commission has also had problems tracking down affected parents, whose children’s aid files may have been closed years earlier or contain outdated contact information.
“We understand that very few people are going to walk away from this in a better position from where they are today,” Beaman told a Law Society of Upper Canada workshop in October. “We know that the remedies are extremely few.”
In his remarks to family lawyers on Monday, commission lawyer Lorne Glass said there have so far been “only two cases where we have a good outcome, but we believe there may be more on the horizon.”
One of those cases involves a mother who has had no contact for seven years with her son, who was adopted into another family. She recently won an openness order, and will soon be getting updates — the beginning of a process that she hopes will lead to face-to-face contact, Glass said.
The other case is that of a father whose access to his two daughters was contingent on his continued sobriety — which had to be proven through Motherisk hair tests. After reviewing his case and finding Motherisk hair tests played too significant a role in the custody decision, the commission sent a letter to the child welfare agency, which responded by gradually increasing his access to his children. They are now reunited on an extended access visit.
“That was a good decision in terms of the kids being able to connect with Dad and Dad being able to be a parent to his children,” Glass said.
Beaman has travelled around the province to speak to child welfare workers and community groups, but these sessions have typically been closed to media by the groups that invited her because of privacy concerns, according to a spokesperson for the commission.
The commission’s work relies heavily on children’s aid societies, which are now preparing the next batch of files — 1,200 child protection cases. The commission identified these cases by cross-referencing child protection cases in Ontario’s court filing system with a case list provided by Sick Kids, Glass said.
The earlier phase, which is almost complete, focused on 577 high-priority files — cases in which a final order had not yet been made. The commission has said it will also review any other case involving Motherisk testing at the request of affected parties.
In December, the head of the Ontario Association of Children’s Aid Societies (OACAS), which has received $1.5 million in funding from the province to assist with the file review, called on Sick Kids to “stand behind their apology” by committing further financial assistance.
On Monday, OACAS spokeswoman Caroline Newton said, “We have not heard anything from (Sick Kids) … We remain open and would like to work with them on accountability to family and children affected.”
Asked if Sick Kids will commit funding to children’s aid societies, spokesperson Matet Nebres said the hospital “continues to co-operate with Justice Beaman’s ongoing review, and to provide support if and when requested, in order to address the concerns of families who believe that they may have been negatively affected by the Motherisk Drug Testing Lab.”
Sick Kids CEO Michael Apkon has said in the past that the hospital “may need to participate in compensating impacted families.” Sick Kids has been named in several proposed lawsuits.
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