2017-12-05 from thestar.com

For the parents in a hard-fought Motherisk case that has highlighted cracks in the child welfare system related to the treatment of Indigenous families, the effect of delay and the reliance on flawed forensic evidence, hope of regaining access to their 10-year-old daughter has been all but extinguished.

The Court of Appeal has overturned a decision that reopened the possibility of continued contact with the child, who has languished in legal limbo since she was apprehended in 2012, when her mother failed a flawed drug test from the Hospital for Sick Children’s Motherisk lab.

In a decision released on Friday, the Court of Appeal found Superior Court Justice Grant A. Campbell, who heard the first appeal in Kitchener, was wrong to overturn the trial judge’s “no access” order and “erred in his consideration of the child’s Indigenous heritage.”

The parents say they plan to seek leave to appeal to the Supreme Court.

“I want to be in her life. I want to be the influence. I want to be the protector of that child,” the father, who is identified by his initials, J.B., to protect his daughter’s identity, told the Star.

Says the mother, C.T.: “I’m not giving up. I’ll never give up. She knows that we love her and she knows what we have.”

The mother is among at least 25,000 people across Canada whose hair was tested by Motherisk before the lab was closed in 2015 and a government-commissioned review deemed the results “inadequate and unreliable” for use in court. The faulty results influenced thousands of decisions to remove children from their families in ways that are difficult to untangle and often impossible to reverse, as the Star has reported.

In this case, the child was made a Crown ward without access to her parents in December 2015 following a long history with the Children’s Aid Society. In reaching her decision, the trial judge said she disregarded the positive cocaine hair tests from Motherisk, which had come under scrutiny, and cited other factors, including concerns about the mother’s parenting abilities and her mental health.

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