The premier weekly newspaper for the legal profession in Ontario
Issue link: https://digital.lawtimesnews.com/i/50553
PAGE 14 FOCUS February 2, 2009 • Law Times just seven years old when her life- less, beaten, and frail little body was found on the floor of a To- ronto apartment last August in a death that shocked the nation. Homicide detectives said her Non-biological parents face new tests for custody I BY IAN HARVEY For Law Times t will be remembered as Katelynn's law. Katelynn Sampson was her own drug addictions. News reports at the time said Justice Debra Paulseth made the order in January 2008, one of hundreds made every year in Ontario family courts; there was no background check, it would have seemed unnecessary with the mother attesting to character of her choice for custody by virtue of the application itself. It was, say judges and lawyers familiar with had been absent from school for two months since the trans- fer and investigate? Why didn't Paulseth demand a background check? Why didn't the Native Child and Family Services of To- ronto take a more proactive role other than simply to help facili- tate the transfer of custody? But for those familiar with the system, nothing unusual was in play — save for the tragic fact Until this legislation, the court had no real investigative power on its own to order a non-parent to have a police record check. injuries were the most horrific they'd seen in decades. Katelynn's legal guardian, Don- na Irving, 29, and her boyfriend, Warren Johnson, 46, were charged with second-degree murder — later bumped to first-degree. The case is still before the courts. As the story unfolded, it was learned that the mother, Bernice Sampson, had applied to the court to give custody to Irving, whom she described as her "best friend," to allow her to deal with the process, simply a matter of process in a crowded court sched- ule where seemingly more serious matters are always pending. What the court didn't know — and critics say failed to find out — was that Irving and her boyfriend both had criminal records involving violence, said media stories at the time. In the outrage that followed, the finger of blame was pointed in many directions: Why didn't the school system note Katelynn that the little girl was murdered. Last fall with the opposition howling for reform, a grim-faced Attorney General Chris Bentley said mistakes were made and that the system simply wasn't geared to deal with unusual cases of transfer of custody to non-bi- ological parents. The response was swift enough. As part of a package of reforms to the Family Law Act, Bill 133 also contains provisions that would require several new steps be taken before non-bio- logical parents can secure cus- tody of a child — regardless of the parents' wishes. There are to be four changes to the evidence required in child custody cases. All parents and non-parents applying for custody or access must now submit an affidavit with a parenting plan; information about the applicant's previous or current involvement in family or criminal proceed- ings; and any other known infor- mation relevant to determining the child's best interests. Non-parents seeking custody must submit to a police records check and obtain a form from the Children's Aid Societies de- tailing what involvement, if any, they have had, whether the file is active, and the relevant dates. This requirement will de- mand forms from every agency in the area the applicant lived, so if they've been mobile, several will be required. Details around the exact rules are still being de- termined in committee. "It's more common than you think," says Tom Dart, chairman of the Ontario Bar Association family law section at Burgar Rowe Professional Corp. in Barrie. The reasons for transfers are also varied, he says, with one of the most common being a simple change in residence to allow the child to attend a specific school that is out of their home district or often to play on a sports team at a higher level than their own district could support. However, he says, with the high rate of marriage failures, it's not uncommon for both parents to support shifting custody to grandparents while the parents sort out their issues and allow the kids some stability. "Until this legislation the court had no real investigative power on its own to order a non- parent to have a police record check," he says. The new rules will add a new burden to parents seeking to make custodial changes for any reason, he says, since getting the record will add more time and cost to the process. Additionally they will have to draft a parent- ing plan, which again will re- quire more work by their lawyers and thus increase costs. Despite the well-placed in- tent, there are some fears that parents will simply shift to an unendorsed transfer of custody to avoid the costs. LT www.lawtimesnews.com