KIMBER: Why we need a public inquiry...

Why we need a public inquiry into the taking of Mona Clare

By Stephen Kimber

May 29, 2005

Forget for a moment the circus that their trial became: their lawyer firings, their seemingly ever-more-paranoid claims of baby-factory conspiracies, their spectator-shocking, judge-trying courtroom outbursts, their richly fertilized and cross-pollinated legal garden of lawsuits, appeals, briefs and petitions that are still growing wild inside Halifax court houses. Forget even Carline VandenElsen’s current “starving-for-the-children” hunger strike that threatens to turn this farce into tragedy.

Focus instead on the single critical — and still unanswered — question that is at the heart of the story of Mona Clare Finck: Did the Nova Scotia Children’s Aid Society have any reasonable legal grounds to seize the infant from her parents in the first place?

Everything else — policemen with battering rams and machine guns showing up at the Finck front door in the middle of one night last May, the single shot fired from inside the house, the 67-hour standoff with a heavily-armed police tactical squad that followed, the death by natural causes of Mona Clare’s grandmother in the middle of it all, the criminal charges, the trial, the application by child protection authorities for permanent custody… All of those events flow from an initial decision by Children’s Aid back in December 2003 to seek an apprehension order for the then still-unborn Mona Clare.

Why did Children’s Aid do that?

Could its decision to take the infant have been made on the basis of nothing more substantial than a relayed phone call to Ontario Children’s Aid from VandenElsen’s far-from-disinterested ex-husband, informing them — wrongly, as it turns out — that VandenElsen had already given birth in Halifax.

We do know VandenElsen and her husband Larry Finck had each been in conflict with child protection authorities in Ontario over the custody of their children from previous marriages. We know Finck served time for abducting his daughter, and VandenElsen was charged with kidnapping her triplets. But we also know a jury found her not guilty of those charges, accepting her argument she was acting out of what she considered necessity. We know too that the Crown successfully appealed the verdict, meaning VandenElsen — still not found guilty of anything — was awaiting a new trial at the time of the apprehension order.

Perhaps most importantly, we know now that there is nothing on the public record — other than their ongoing battles with child custody authorities — to indicate that either Finck or VandenElsen was an unfit parent.

So why did Children’s Aid seize Mona Clare?

Should there be — as Carline VandenElsen is demanding — a full public inquiry to answer that question?

Nova Scotia Justice Minister Michael Baker doesn’t think so. Shortly after VandenElsen announced she would stop eating until authorities agreed to such an inquiry, the Justice Minister issued a terse news release: “Based on the information we have at the present time,” he said, “the Department of Justice does not feel that a public inquiry is warranted.”

What information is that, Mr. Baker?

The province’s Children and Family Services Act, which governs child custody issues, is clear that the “purpose of this Act is to protect children from harm, promote the integrity of the family and assure the best interests of children.”

The Act specifically lists 14 different situations in which a child might be “in need of protective services.” Those include everything from actual and potential physical, sexual or emotional abuse, to neglect and abandonment, to the parents’ failure or unwillingness to provide proper medical care.

None of the criteria apply to this case.

Even if you were to stretch the Act’s Section 22.2(g) — which says a child can be taken from its parents if “there is a substantial risk that the child will suffer emotional harm [demonstrated by severe anxiety, depression, withdrawal, or self-destructive or aggressive behaviour]…” — and tried to make the argument that someday perhaps Mona Clare’s parents’ disputes with child protection authorities over custody of children from before she was born might somehow, possibly, conceivably result in some unspecified emotional harm to Mona Clare, well, that is much, much more than just a stretch.

The Act itself is clear about what constitutes “substantial risk” of harm to a child: “a real danger that is apparent on the evidence.”

The evidence in this case, in fact, suggests quite the opposite. The doctor who delivered the child and met with the family before and after her birth reported: “Both parents appropriate with baby, caring, loving.” Neighbours, who saw mother and daughter in the weeks before the police assault, said they saw nothing to indicate the child was in any danger. Doctors and nurses at the IWK, who examined five-month-old Mona Clare after she’d been seized by police, described her as “a well grown and well developed baby with no clinical signs of any illness… doing well… active, playful and feeding well…”

So, Mr. Baker, let me ask you again: What information did your department have at the time that legally justified seizing this child from her parents?

Or does this really have anything to do with the law?

Could it be that Children’s Aid here over-reacted to an over-reaction by child protection officials in Ontario, who didn’t like Finck’s and VandenElsen’s attitude and wanted to punish them for the crime of being difficult? And could it be that judges here okayed this because our Family Court system has become more of a rubber stamp for the child-care bureaucracy than a careful check on the arbitrary powers of those agencies? Could there be other cases as egregious as this one that we don’t yet know about only because no shots were fired.

The truth, Mr. Baker, is that you already have plenty of information to warrant a public inquiry. It’s past time you called one.

Stephen.Kimber@ukings.ns.ca