J.C. & T.B. v. Children’s Aid Society of the Regional Municipality of Waterloo, 2011 CFSRB 2

CHILD AND FAMILY SERVICES REVIEW BOARD

J.C & T.B.

v.

Children’s Aid Society of the Regional Municipality of Waterloo

REASONS FOR DECISION

Date: February 14, 2011

Citation: 2011 CFSRB 2

Indexed as: J.C. & T.B. v. Children’s Aid Society of the Regional Municipality of Waterloo (CFSA s.144)

INTRODUCTION

1The Applicants J.C. and T.B. applied to the Child and Family Services Review Board (the “Board”) for a review pursuant to subsection (3) of s.144 of the Child and Family Services Act (the “Act”) of the decision of the Children’s Aid Society of the Regional Municipality of Waterloo (the “Society”) to refuse their application to adopt their granddaughter [the child] born the [ ] day of February, 2010. The Society disputes the jurisdiction of the Board and seeks an order dismissing the application for lack of jurisdiction. A jurisdiction hearing took place on January 18, 2011. The Board determines that it has jurisdiction to hear this application on the merits for the reasons which follow.

BACKGROUND

2The Applicant J.C. is the paternal grandmother of [the child] and the Applicant T.B. is the spouse of J.C.. The Applicants are in a long term relationship of about twenty years. [ ] is the son of J.C. and the father of [the child]. [The child] was apprehended by the Society shortly after her birth and has been in foster care since then. The Applicants expressed interest to the Society in having custody of [the child] and were directed to engage in the adoption process. The Applicants were in the process of obtaining and forwarding information required for adoption to the Society and J.C. was enrolled in PRIDE training when the Society sent correspondence to the Applicants dated October […], 2010 refusing their application to adopt [the child]. This correspondence was received October 8, 2010 by the Applicants. The Applicant J.C. applied to the Board for a review of the adoption refusal decision by application dated October 19, 2010 filed with the Board the same date.

JURISDICTION ISSUES

3The Society submits that the Board lacks jurisdiction on two grounds as follows:

A. That the application was not filed within 10 days as required by s.144 (3) of the Act.

B. That the complaint is based on facts and issues that are before the Court and which are the subject matter of litigation before the Court.

ANALYSIS

A. That the application was not filed within 10 days as required by s.144(3) of the Act.

4It is not disputed that the Applicants received the adoption refusal correspondence from the Society dated October […], 2010 on October 8, 2010. Further it is not disputed that this application to the Board was made eleven (11) days later on October 19, 2010. The Society submits that the 10 day statutory time period in s.144(3) is mandatory and not subject to enlargement by any legislative or other provision and accordingly the application is out of time. The relevant statutory provisions are as follows:

s.144 (1) This section applies if,

(a) a society decides to refuse an application to adopt a particular child made by a foster parent, or other person.

s.144 (2) The society or licensee who makes a decision referred to in subsection (1) shall,

(a) give at least 10 days notice in writing of the decision to the person who applied to adopt the child or with whom the child had been placed for adoption;

(b) include in the notice under clause (a) notice of the person’s right to apply for a review of the decision under subsection (3).

s.144 (3) A person who receives notice of a decision under subsection (2) may, within 10 days after receiving the notice, apply to the Board in accordance with the regulations for a review of the decision subject to subsection (4). 2006, c. 5, s. 36.

5The Applicants suggested that in counting days after receipt of the adoption refusal letter that Thanksgiving Day, and perhaps Sundays, should not be counted. The Board finds that this position is not supported by any time computation provision in the Act and that s.8 of the Interpretation Act applies. The result is that the first day is excluded and the remaining days are counted, and not extended, since the last day was a weekday and not a Sunday or public holiday. The text of s.8 follows:

8. (1) In computing time for the purpose of any Act, unless the contrary intention appears –

(a) a period of days from the happening of an event or the doing of any act or thing shall be deemed to be exclusive of the day in which the event happens or the act or thing is done;

(b) if the last day of the period is Sunday or a public holiday (which days are in this section referred to as excluded days) the period shall include the next following day, not being an excluded day;

(c) when any act or proceeding is directed or allowed to be done or taken on a certain day, then if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next following day, not being an excluded day;

(d) when an act or proceeding is directed or allowed to be done or taken within any time not exceeding six days, excluded days shall not be reckoned in the computation of the time.

(2) In this section “public holiday” means any public general holiday and includes Good Friday and Christmas Day.

6The Applicants further responded that they did not understand the complaint process following receipt of the adoption refusal letter and J.C. called the Society on Sunday, October 10, 2010 since she had not received any “forms” with her refusal letter as was indicated as being included in the text of the letter. The Society responded by letter to the Applicants dated October13, 2010 enclosing an Ontario government brochure (not a Board document) which unfortunately did not reference the Board website and which was perhaps misleading on time frame. The brochure provided by the Society specifically instructed as follows:

Fill in a Record of Crown Ward or Refusal of Adoption form and mail or fax it to the CFSRB within 10 days of receiving notice from a CAS.

7The difficulty with this brochure information is that “mailing” within 10 days, rather than receipt by the Board within 10 days, appears to be acceptable. Although not relevant to this determination, the Applicants indicated that this October 13, 2010 letter with brochure from the Society arrived on October 25, 2010 almost two weeks after mailing.

8Subparagraph (b) of s.144(2) of the Act directs the Society to include in the adoption refusal notice specific notice of the person’s right to apply for a review of the decision under subsection (3). The Society refusal notice to the Applicants dated October 5, 2010 was vague and misleading and fell significantly short of meeting the statutory requirement for informing a person of his or her rights to a review. Specifically the Society refusal letter of October 5, 2010 set out only the following relevant to this review consideration:

I advised you of your right to consider a complaint process. In this regard, please find relevant government forms enclosed.

9Since the refusal letter failed to adequately inform the Applicants of the s.144(3) right to apply for a review within ten days, the Board finds the 10 day time for review was not engaged on October 8, 2010 and accordingly the application is in time and not barred by operation of s.144(3).

10The Board finds that a notice from a Society under s.144(2)(a) must include a specific reference to s.144(3) and use the wording from this provision to satisfy the requirement in s.144(2)(b) of the Act. Preferably this notice letter would also include the name, address, telephone, and facsimile numbers for the Board and reference to the Board website www.cfsrb.ca.

B. That the complaint is based on facts and issues that are before the Court and which are the subject matter of litigation before the Court.

11The Society refers to a Protection Application issued February […], 2010 with respect to [the child], which is still before the Ontario Court of Justice in [City A]. The Society is seeking an order for Crown Wardship without access in this proceeding and the Respondents in the protection proceeding are the parents of the child, [ ]. The Applicants in this matter, J.C. and T.B., are not parties and have not attended Court in the Child Protection proceeding. The Applicant, J.C., made an Affidavit sworn the […] day of October, 2010 containing reference to her application to adopt her granddaughter, [the child], the subject of this refusal, and making reference to her willingness to have her granddaughter, [the child], placed in her care. This Affidavit was filed with the Court by legal counsel for [her son] to support the plan being put forward by [her son] that this daughter reside with him or with his mother, J.C., in the alternative.

12The Board notes that this Affidavit was only prepared and filed with the Court after J.C. had been refused as an adoption placement for her granddaughter and that it was prepared by her son’s lawyer in support of the position of [her son] in the Child Protection proceeding. The issue before the Court in the Child Protection proceeding is whether or not the child should be made a Crown Ward or otherwise to determine what disposition is in her best interests. It is only after a Crown Wardship Order has been made that a Society may place a child for adoption. In this case, the Society elected to begin long term planning and to consider adoption placement before being in a legal position to actually place the child for adoption. The issue before this Board is the decision by the Society to refuse the application by these Applicants to adopt their granddaughter. That consideration is not before the Court and the Court does not make any determination with respect to suitability of an adoption placement in a Child Protection proceeding. It is not open to the Society to take issue with the jurisdiction of this Board on the basis that the child is not yet legally available for adoption (a Crown Ward) when the Society elected to begin adoption planning in advance of a Crown Wardship disposition and to refuse these Applicants.

13It is the Society that determines with whom a child will be placed for adoption and it is within the sole jurisdiction of this Board to review such a decision when a Society decides to refuse an application to adopt a particular child. The fact that J.C. and her partner, T.B., are being put forward as a custodial option for [the child] by their son in the Child Protection proceeding does not deprive the Applicants of their right to have a review of this adoption refusal by this Board pursuant to Section 144(3) of the Act.

14The issues being determined by the Court and by this Board are distinct and there is no overlapping jurisdiction.

15The Society further relies on the decision of the Divisional Court (under appeal to the Ontario Court of Appeal) in the case of The Children’s Aid Society of Waterloo v. DD in support of its position that the Court is now the only decision maker in this case and has asked the Board to consider the following paragraphs and principles from that decision:

37In many instances, both the court and a child welfare agency will address the same issue in the course of a child protection proceeding, albeit at different stages. In the present case, the principal objection of the respondent is that the Society failed to hear her views regarding kin placement of her children with the respondent’s aunt or mother and failed to agree to any particular placement with her relatives. However, even assuming that the Society had reached a decision rejecting both kin placements, the ultimate decision-maker on this issue was the Court.

43In the circumstances in which a child protection proceeding is before a court, interested parties may bring all complaints before the court which will review the substantive issue of the best interests of the child in accordance with the requirements of natural justice. In it is only where child protection proceedings are not before a court that a forum is required to ensure that the interests of the child are addressed through the benefit of the involvement of all interested parties.

16The Board disagrees with the position put forward by the Society that the subject matter of this review is before the Court and that the decision in The Children’s Aid Society of Waterloo v. DD applies. The case of The Children’s Aid Society of Waterloo v. DD was an application to this Board by an individual putting forward complaints about the Society pursuant to Section 68.1 of the Act. Subparagraph 8(a) of Section 68.1 contains a specific prohibition on this Board conducting a review of such a complaint if the issue has been decided by the Court or is before the Court. Subparagraph 8(a) of Section 68.1 provides as follows:

(8) The Board shall not conduct a review of a complaint under this section if the subject of the complaint,

(a) is an issue that has been decided by the court or is before the court;

17There is no similar provision in Section 144 of the Act and the Court could not be said to be the ultimate decision-maker on the adoption refusal issue. Approval of an adoption placement or review of an adoption refusal is not within the purview of the Court in a Protection Application pursuant to Section 40 of the Act or otherwise. The legislature has given the Board clear authority to review a Society refusal of an application to adopt a specific child under s.144 of the Act without any of the limitations or constraints imposed for an application under s.68 and 68.1 of the Act.

CONCLUSION

18For the reasons set out above, the Board determines that it has jurisdiction to hear this application and the Case Coordinator will contact the parties to schedule hearing dates.

Gregory Price

Presiding Member

Suzanne Gilbert

Board Member

Ruth Ann Schedlich

Board Member