B.C. grandmother wins new hearing for custody because of poor counsel - Child & Family - British Columbia - grandchildren's care - Brief Article

Community Action, March 18, 2002

VANCOUVER -- A British Columbia grandmother has won the right to a new hearing for custody of her grandchildren because, the B.C. Court of Appeal ruled, she was not effectively represented by her lawyer in the original hearing.

The family had a history of involvement with the province's Child, Family and Community Services, which removed the infants from the grandmother's home. The mothers - aged 15 and 19 - also lived in the home. They supported removal of the children and opposed their mother's attempt to regain custody on the grounds that they, themselves, had suffered physical and emotional abuse from her. She denied the allegations.

During the initial hearing, the grandmother's lawyer refused to put her on the stand to testify and to counter evidence that was introduced for the first time on the grounds that she would harm her own case. He threatened to advise the judge that she was giving evidence against his advice if she insisted on testifying.

When extended custody was awarded to the province, the grandmother appealed to the B.C. Supreme Court, which agreed that she had not received adequate legal counsel. However, the court rejected her request for a new hearing because, it said, the outcome was likely to be the same based on her lack of credibility.

The Court of Appeal disagreed, stating that "where a litigant is wrongly deprived of her right to call any evidence or testify, it cannot be said that she has had a hearing at all and a new hearing must almost always be ordered."