Separated by a hair

In British Columbia, a mother is desperate to convince the children she lost years ago that she didn’t choose drugs over them.

In Nova Scotia, a 7-year-old girl prays for her brother, who was adopted into another family.

And in Ontario, a mother whose daughters were taken shortly after they were born is waiting for a reunion that may never come.

For more than two decades, in thousands of cases across Canada, flawed drug and alcohol testing from the Hospital for Sick Children’s Motherisk lab influenced high-stakes battles over whether to remove children from their families.

Child welfare agencies in five provinces paid for Motherisk’s hair-strand tests, believing the results were hard evidence of substance abuse.

In fact, Motherisk’s results were faulty opinions, devised by scientists who operated without oversight or forensic training yet testified as experts in family and criminal courts as far afield as Colorado. The sterling reputation of Sick Kids and the promise of a simple, concrete answer in difficult cases obscured the warning signs that were there from the earliest days.

A joint Toronto Star/CBC investigation reveals, for the first time, the scope and impact of a tragedy that was experienced across Canada. The lab’s client list, obtained through freedom-of-information legislation, and an analysis of court records show Motherisk performed tests for more than 100 child welfare providers in British Columbia, Ontario, Quebec, New Brunswick and Nova Scotia.

At least four of these provinces continued to rely on the tests after 2014, when the Star first sounded the alarm on the lab after its results were challenged in an Ontario appeal court. Even after the Ontario government released a report in December 2015 that determined Motherisk’s evidence was “inadequate and unreliable” for use in court, New Brunswick and Nova Scotia persisted in using hair testing to help decide whether children should be permanently removed from their parents’ homes.

Journalists from the Star and CBC’s The Current and The Fifth Estate interviewed families, reviewed more than 40 child protection cases that relied on Motherisk’s testing, and surveyed provincial governments about their responses to Motherisk’s failings. So far, only one province, Ontario, is providing counselling and legal support to affected families. None are offering financial compensation.

“Losing your child is the capital punishment of child protection law,” said retired judge Susan Lang, who wrote the government-commissioned report on Motherisk. “You need to have these test results done right.”

In a recent interview, she called the fallout “a tragedy.”

“I suppose the best that any of our families can hope for is ongoing contact between parent and child,” she said. “I wish I could wave a magic wand and make it all happen, but I suspect that we cannot do that.”

Dr. Gideon Koren, the founder and former director of Motherisk who retired from Sick Kids during Lang’s review in 2015, still speaks at medical conferences around the world. This month, he was a panellist in Windsor, England. A crowd of 50 listened as Koren, who now works in Israel, spoke about hyperemesis gravidarum, a severe form of morning sickness, in a room overlooking the Royal Windsor Racecourse favoured by the Queen.

Koren’s smile faded when he was approached by a reporter who asked about the problems at Motherisk.

“I will not answer. Under legal instructions, I cannot talk about that,” he said, before exiting down a back stairwell.

The mother in B.C. wants answers.

The woman, who is identified as Lisa, a pseudonym, to protect the identity of her children, said “I lost my whole life over those tests.”

This B.C. mother the Star is calling Lisa believes Motherisk’s hair tests were the linchpin in the decision to place her children in permanent care. Darryl Dyck for the Toronto Star

Her two daughters were placed in permanent care 11 years ago due in part to Motherisk testing, which showed she had recently used methamphetamine, a finding she denied. Although there were other factors in her case, including allegations of neglect, she believes the hair testing was the linchpin.

“I didn’t even have an identity outside of being a mother,” she said. “I didn’t know who I was or where I was going when they took my kids away from me. I tried to commit suicide more than once.

“I felt I was this horrible person. I wasn’t capable of having children or being around people. I just didn’t think I was human.”

The Motherisk scandal emerged in late 2014, after an expert witness challenged the reliability of the lab’s evidence in the case of a Toronto mom convicted in 2009 of repeatedly feeding her toddler cocaine, leading up to a near-fatal overdose. The criticisms of Motherisk led the Ontario Court of Appeal to toss Tamara Broomfield’s cocaine-related convictions. But it wasn’t until spring 2015, after Sick Kids had shuttered the lab during Lang’s review, that provincial governments addressed the use of hair-strand testing. The responses varied widely.

That April, Ontario instructed child welfare agencies to stop relying on the testing in “ongoing and future” child protection cases. A month later, B.C., where media has reported that 8,000 newborns and adults underwent Motherisk testing between 1997 and 2015, imposed a moratorium on hair testing for child protection cases.

Almost a full year later, in March 2016, New Brunswick issued a similar order; there, according to information released by Sick Kids, between 1,100 and 1,400 individuals had their hair tested by the Motherisk lab. Nova Scotia, where an estimated 750 to 900 individuals were tested, stopped relying on hair testing in April 2016, four months after Lang’s final report was released.

That was too late for a Nova Scotia mother and father who were in the final throes of a battle to keep their family together.

The parents, who we are calling Fred and Julie, had a history with child protection, according to court rulings. The primary concerns were their volatile relationship and allegations of substance abuse, which were confirmed, in part, by Motherisk testing.

A Nova Scotia couple the Star is calling Fred and Julie, to protect their children’s identities, say they were hurt by Motherisk hair tests, including testing that purported to show active cocaine use by the dad. Their son was eventually adopted. Vaughan Merchant/Toronto Star photo illustration

Two of their children — a girl, 3, and a boy, 7 months — had been living with their paternal grandmother when the kids were apprehended in July 2013. A child protection worker alleged Fred had violated a court order prohibiting him from being in the house at night and that there was a “physical altercation” between Julie and the grandmother.

The ministry moved for permanent care in separate trials. The parents lost the first trial, concerning their son, in June 2014. Fred, who was seeking sole custody, had recently produced a clean Motherisk test. But the judge noted that previous Motherisk testing showed “active, intensive and frequent” cocaine use, which reflected the “lack of honesty” of Fred, who characterized his past use as recreational.

By the time their daughter’s case got to court in December 2014, Lang’s review of Motherisk was underway. This time, Fred, again seeking sole custody, presented hair tests from a forensically accredited lab in the U.S., which came back negative for cocaine. He got his daughter back.

In that May 2015 ruling, the judge said she assigned “no weight” to the news that Ontario had stopped relying on Motherisk testing. Instead, based on the test from the independent lab and other evidence about the father’s lifestyle, she concluded he had not used cocaine since September 2013, despite several positive Motherisk tests showing very low concentrations of the drug during this period.

Fred then filed an application to terminate the permanent wardship order for his son, but was told it was too late. He tried to get a judicial review but his application was found to be outside the court’s jurisdiction. The boy’s adoption was finalized in June 2015, a month after the decision in his sister’s case.

After Lang’s report was released, the parents petitioned the province to review their case. They were told only that the review request had been granted but have not received further information.

The Nova Scotia Community Services Department declined to comment on the case. A spokesperson said the department had received only one request to review a child protection file involving Motherisk, “resulting in no change to the original decision.” As far as the province is concerned, they are not getting their son back.

Fred and Julie are suing Sick Kids, Koren, lab manager Joey Gareri and the Nova Scotia government — two of the estimated 275 named plaintiffs in at least 11 lawsuits related to Motherisk. In their statement of claim, they allege the province exercised “tunnel vision” and “failed to consider strong evidence ... surrounding the accuracy and reliability of the evidence provided by the Motherisk laboratory and, instead, sought to suppress it.”

In an interview, Fred said, “It’s torn me apart ... because that’s my son, and that’s my daughter. They’re not together when they should be together. Every day, I think about that.”

The mother, who was granted access to her daughter, said the 7-year-old collects toy cars for her brother, and mentions him in her nightly prayers.

“She’ll ask God to hurry up and let (him) come back home,” she said.

In its statement of defence, the province argued Motherisk’s tests were “but one item of evidence” in the case, which had been decided in a fair trial, in a decision that had not been appealed by the legislated deadline. Sick Kids and Gareri, in a joint statement of defence, argued that “any losses, damages, injuries or harm allegedly suffered by the plaintiffs were caused entirely by their own actions.”

Motherisk lab manager Joey Gareri testified in a proceeding in 2014 that placed an infant in permanent care without access to his parents. Those parents are now suing Gareri, Sick Kids and Koren. Steve Russell/Toronto Star

Koren, in his statement of defence, said Motherisk’s hair tests were “accurate and reliable for their intended purpose” to “provide information relevant to the medical care and safety of children,” and maintained that “any loss of custody or visitation rights (in this case) would have occurred regardless of the hair tests.”

Koren is also the subject of an investigation by the College of Physicians and Surgeons of Ontario. The research arm of the Motherisk Program he founded in 1985 to provide drug safety advice to pregnant women is still operational.

Sick Kids has never released complete details on the number of court cases that relied on Motherisk’s hair tests. Citing ongoing litigation, the hospital refused to answer questions for this story. Individual governments conducting reviews of affected child protection cases declined to share any tallies that may exist, despite repeated requests.

Even in Ontario, the total is unknown; Lang’s review found that roughly 16,000 individuals had their hair tested by Motherisk at the request of 43 child welfare agencies from 2005 to 2015. (Of those, more than 9,000 individuals tested positive.)

However, the Star/CBC investigation indicates Motherisk cast a long shadow, conducting at least 35,000 tests on 25,000 individuals across Canada.

The lab’s client list shows Motherisk performed testing for 46 child welfare providers in B.C. from 2007-15, including several serving Indigenous communities.

In Quebec, the client list includes the Batshaw Youth and Family Centres in the Montreal suburb of Westmount, the strongest evidence to date that the results were used in child protection proceedings in that province. (Batshaw declined to comment, citing confidentiality issues.) As the Star has previously reported, Motherisk gave evidence in a 2013 criminal case in Quebec, but the testimony did not affect the guilty verdict.

In at least one instance, Motherisk’s evidence was given in the U.S., where former lab manager Julia Klein testified in 1993, in a pre-trial hearing for a murder case in Colorado, according to a transcript of the proceeding obtained by the Star/CBC. The hearing exposed the same failings that were identified by Lang, including that Motherisk fell short of forensic standards and did not confirm preliminary results with a gold-standard test. It is the only known case in which a judge threw out Motherisk’s results before the controversy emerged more than 20 years later.

In Ontario, a government committee reviewed seven criminal cases, six of which resulted in convictions. Attorney General Yasir Naqvi refuses to identify the cases, citing privacy concerns, although all are on the public record.

In an interview, Naqvi said that outside of the Broomfield case, the review identified only one conviction where there were “serious concerns” that Motherisk testing “played an important role.” He said the “affected parties” have been informed and “given access to legal representation.”

Ontario Attorney General Yasir Naqvi said a review of seven criminal cases identified only one conviction where there were "serious concerns" about Motherisk testing playing a key role, outside of the Tamara Broomfield case that launched the Star's investigation. Andrew Francis Wallace/Toronto Star

The Star/CBC has confirmed that case involves a father who, like Broomfield, was convicted of feeding his young son drugs — in this case, OxyContin — based on Motherisk’s hair tests. The father, who can’t be named to protect the identity of his son, was sentenced in Barrie in 2008 to six months in jail. He died after his release.

The reviews of child protection cases vary widely, from Ontario’s $10-million Motherisk Commission, established in January 2016 to probe cases and offer counselling and legal aid funding, to Nova Scotia, where the framework has not been finalized. (Quebec has not answered questions about hair testing or whether it will probe affected child protection cases.)

Whatever the parameters, it’s an inherently imperfect process that involves untangling a web of factors that influence custody decisions. And with Motherisk, there is also no chance for exoneration: The lab’s analyses were sloppy but not necessarily incorrect, and samples were not retained for retesting. Those who believe they were wrongfully branded drug addicts and alcoholics and lost their children will never be able to prove it.

Legal remedies will be hard fought, and in many cases unsatisfying, for the reason that once finalized, adoptions are virtually impossible to disrupt.

Rollie Thompson, a family law professor at Dalhousie University, explains that the difference between overturning criminal cases and child protection matters is that “the wrongly convicted criminal gets out of jail.”

“Children’s lives move on, so that you can’t reverse it,” he said. “You can’t let them out of permanent care and put them back with their parents. You can’t rewrite history.”

In Ontario, where the Motherisk Commission expects to review roughly 1,200 files during its two-year mandate, the probe has identified 50 cases where Motherisk’s tests had a substantial impact. So far, there are only six cases where parents and children have reunited in some way.

Commission counsel Lorne Glass said one of the challenges is that “there are lots of cases where adoptive parents don’t want to have to deal with openness, no matter what that openness really constitutes.”

Motherisk Commission counsel Lorne Glass said “there are lots of cases where adoptive parents don’t want to have to deal with openness, no matter what that openness really constitutes.” Andrew Francis Wallace/Toronto Star

“Where a child still has access with a parent, the chances of a reunification are a lot greater,” he said. “Where a child’s been adopted ... and has not had any contact with a parent for many years, the chances of a reunification are slim.” (The commission has drawn criticism for not looking at all affected files, but Glass, who is also reviewing select cases that relied on hair tests performed in private labs, says he believes the review will capture the cases where children have been permanently removed.)

The success stories do not include an Ontario mother who lost her two young daughters eight years ago following Motherisk’s positive cocaine tests, despite dozens of clean urine tests she produced before her trial.

Heather (not her real name) was informed in April 2016 that the commission found Motherisk’s results had a substantial impact in her case. However, she was upset by the letter she received from Commissioner Judy Beaman, which stated that Motherisk “was not the only evidence supporting the decision.” Heather believed it was.

“All they had to say is yes or no: Did the hair test play a role? ... To elaborate on that you’re ... judging something that you don’t have the complete information to make a determination on,” she said in an interview.

Heather was one of three mothers who launched an unsuccessful application for judicial review of the commission last year, arguing that the process should include public hearings and participation from birth parents. A Toronto Divisional Court dismissed her application as moot because the commissioner had rendered a positive decision in her case, but she is no closer to reconnecting with her daughters. (The court also said that because her daughters were previously involved with children’s aid, she could not be identified in media reports. Heather is among the parents suing Sick Kids.)

“Heather,” a mother who was informed that Motherisk’s results substantially affected her case. She lost two daughters eight years ago. CBC, The Fifth Estate

In a letter to Heather’s lawyer in June, Glass indicated that the children’s adoptive parents had been told of Heather’s desire to engage in mediation, which the commission is offering to fund as an alternative to a court challenge, “but to date, they have not advised us that they are prepared to participate in such a process,” he said.

Glass declined to comment on individual cases, but in general, he said the commission doesn’t have “the authority to compel parties to participate in any process,” and noted that in cases where Motherisk was found to have played a significant role, funding is available to fight for reunification in court.

Heather said: “I don’t know where my kids are. I don’t know if they’re safe. I don’t know if they’re happy.

“My daughters have a right to know where they come from. They have a right to know that they were loved. They have a right to know they were wanted.”

Susan Lang says Motherisk shows “these problems can happen again.”

After all, despite a high-profile public inquiry in 2007 and 2008 into the devastating mistakes of Sick Kids forensic pathologist Charles Smith, whose flawed autopsy analyses tainted more than a dozen cases, Sick Kids and the courts failed to see history repeating with Motherisk.

“You have someone who is positioned in a place where they can make a difference ... and who sees the work growing and takes advantage of it, and is able to persuade children’s aid workers, courts, judges, lawyers, that they have the answer ... it’s something that everybody wants,” Lang said.

“There will be another time, there will be another issue. It’s hard to predict what it is, but the more transparency we all have and the more understanding we all have ... the better we might be able to raise some red flags in the future.”