NUNAVUT - The length of time parents in Nunavut can have to wait between the seizure of their children and a judicial screening of the grounds for apprehension violates the Charter of Rights and Freedoms, ruled a territorial judge earlier this month.

The Nunavut Court of Justice ruled parts of the Child and Family Services Act violate the Canadian Charter of Rights and Freedoms. The territorial government has one year to amend to act to comply with the charter. - Jeanne Gagnon/NNSL photo

Justice Robert Kilpatrick ruled this past Nov. 15 that Sections 24 and 26 of Nunavut's Child and Family Services Act violate the provisions of section 7 of the Canadian Charter of Rights and Freedoms. Kilpatrick gave the territorial government one year to bring the act into compliance with the charter. All other provinces and territories had done just that following a Supreme Court of Canada ruling in 2000.

Both sections breach the charter because those sections allow too long a time frame to bring a matter before the court, said Karen Wilford, senior family counsel for the last six years with the Nunavut Legal Services Board.

"Families who have involvement with child and family services have the right to have their matters brought before the court more quickly than the legislation currently provides for," she said.

The ruling stems from a challenge launched by a parent, identified only in court documents as P.E. The plaintiff's children, apprehended in February 2009 by a child protection worker, were returned eight months later following a hearing in October 2009.

Nunavut Legal Services Board lawyer Paul Lesarge, who represented the plaintiff said he's "very pleased" with the decision.

"I was fairly confident (we would win) because we had a really strong case and that's the way it turned out," he said. "It's nice for her (plaintiff) to know that she has the protection of the law. And if government comes in and takes her child, that she will get her day in court and it will be soon and they have to justify coming into their house and taking the children."

In court, the territorial government argued a chronic social worker shortage was to blame for the lengthy delays, an argument Justice Kilpatrick refuted, stating the government should hire lawyers to handle the legal proceedings.

"It makes little sense to burden social workers with additional legal responsibilities when they cannot cope with the existing level of demands being made upon their services," he wrote in the decision.

The current territorial legislation states a court hearing application must be made within 45 days after a child is removed from a home, compared to legislation in other provinces and territories where the time limit ranges from one to seven days.

The hearing must take place no later than three months after the first appearance. Under Nunavut legislation the maximum length of time a child can stay in the care of the government without a judicial review to determine the merit of the removal application is 135 days. By comparison, other Canadian jurisdictions allow a maximum ranging from five to 37 days for this process.

"To date, the child and family services department complies with the legislation, which means they do not bring matters before the court later than 45 days after an apprehension but they certainly, in my experience, do not bring them very much sooner than that," said Wilford. "In terms of having a final hearing, it can often be a significant number of months after an apprehension before the matter is ready for a hearing."

But Norm Murray, director of child and family services for Nunavut, said about a year ago the court made practice directives following another ruling, which the territory has put into practice, he said. Under those directives, Nunavut has four days after a child is removed from a home to file the paperwork to the court, said Murray. He added the court has nine days from the date of the apprehension to have a hearing to decide whether the child's removal was justified or not.

Murray said the the government is currently reviewing the act and will comply with the court decision.

"We expected this (decision). In fact, we were waiting for it," he said.

Wilford, a family lawyer for 20 years, said she sees a dozen cases similar to P.E.'s every year and for that reason alone, it's important the court clarify the time frame to bring matters before the court.

"The decision is very significant," she said. "It's a very important decision because it reaffirms the rights of families in Nunavut to have the same access to justice that families in the rest of Canada have, pursuant to other similar legislation in other provinces and territories."

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