J.M. v. Family & Children’s Services of the Waterloo Region, 2015 CFSRB 01

CHILD AND FAMILY SERVICES REVIEW BOARD

J.M.

v.

Family & Children’s Services of the Waterloo Region

REASONS FOR DECISION

Date: January 9, 2015

Citation: 2015 CFSRB 01

Indexed as: J.M v. Family and Children’s Services of the Waterloo Region (CFSA s.144)

Introduction and Background

1J.M., the Applicant (the “Applicant”), filed an application with the Board pursuant to section 144 of the Child and Family Services Act, R.S.O. 1990, c. C.11 as amended (the “Act”). The Society has refused the application of the Applicant and his partner S.M., to adopt the Applicant’s grandchild, [grandchild], born [ ], 2011. The Applicant is the maternal grandfather of the child. The child has been apprehended by the Society and is currently placed in a foster home. The child is subject to a Status Review proceeding under the Act in the Ontario Court of Justice in Kitchener. This Application is scheduled for a summary judgement motion for Crown Wardship, which is scheduled to be heard on February 19, 2015. The Applicant is not a party to that proceeding. The parents of the child have until January 9, 2015, to file Answers and a Plan of Care with the Court. The parents Plan of Care currently before the Court, seeks the return of the child to the mother, or alternatively a placement of the child with the father and the paternal grandfather.

Motion

2The Respondent Society has brought a motion and seeks:

(a) An Order dismissing the Application for lack of jurisdiction as the child subject of the Application is not available to be placed for adoption; and,

(b) In the alternative, an Order that the Application be stayed until such time as the child is legally available to be placed for adoption.

Analysis

3The Applicant has made an application to adopt the child. At the date of the Application, the child has not been placed for adoption with another person. The Society has refused the application. This is sufficient pursuant to section 144(1) of the Act, to give the Board jurisdiction to review the Society’s decision.

4The matter of Crown Wardship is still before the Court. Final Plans of Care have yet to be filed in that proceeding. There are several possible outcomes to the protection proceeding other than an Order for Crown Wardship. This leads to uncertainty in terms of planning for the child. However, the Court has no authority over adoption application refusals. In terms of confirming its jurisdiction, the Board adopts its reasoning in V.T. and D.T. v. Children’s Aid Society of London and Middlesex, 2012 CFSRB 50 (“V.T.”) set out below:

15This application is made pursuant to section 144(1) a) of the Act. This section does not create any pre-condition that the child must be a Crown ward without access for the purpose of adoption. The only conditions are that the adoption application must have been made for a particular child, not for any child, and that the Society must have made a decision to refuse the application. The words used by the legislator are clear and do not raise any ambiguity. Where the legislator has sought to limit a right of review before the Board to circumstances where children are crown wards, it has done so. Specifically, in s. 61(7) of the Act, the legislator explicitly states that the child must be a Crown ward before a foster parent may seek a review of the proposed removal of the child from the foster placement. The legislator has clearly turned its mind to the question of when Crown wardship is necessary and when it is not in order for the Board to have its powers of review relating to foster parents.

16The location of section 144 in the Act cannot by itself justify an interpretation that the child needs to be a Crown ward when the section does not mention that condition. Of course, the right given to a foster family or any other person to request a review of a society’s decision to refuse an application to adopt belongs in the adoption section of the Act. But the decision of a society to refuse an application to adopt a particular child does not necessarily happen always after a child has been made a Crown ward and is made available for adoption which explains, in the opinion of the Board, the fact that section 144 does not apply restrictively to when a child is available for adoption.

17The Society recognized that it has a policy to use concurrent planning for a child, which means that adoptive families will be canvassed while the Society waits for the Court decision on the protection application. This practice goes beyond the recent amendment at section 141.1.1 (1) which says that nothing in the Act prevents a society from planning for the adoption of a Crown ward in respect of whom there is an access order in effect. The reality is that home studies are made and families are identified as potential adoptive families. Sometimes, where foster parents want to adopt or prospective adoptive parents qualify as foster parents, a placement with a view to adopt is made. If the child is made a Crown ward for the purpose of adoption, the formal, legal placement for adoption may occur immediately after the time period to appeal the Crown ward decision has expired. The approach is to avoid multiple placements and to find the right family for a child as soon as possible.

18To limit the jurisdiction of the Board to after a child is made a Crown ward could create a situation that is not in the best interest of the child. If the Board was to give effect to the Society’s interpretation, a person may express his wish to adopt a particular child but would have no right of review if the child is not yet a Crown Ward. Still the person has been refused and could have been a valid placement option for the child. During that time, concurrent planning is unfolding. At the same time, if a society waits to assess the application of a person who applied to adopt a child after this child is made a Crown ward and if in the meantime, according to societies’ practices, the child has already been placed with a family with the view to adopt, it places that person at a disadvantage as the child has already been involved with a family. When reviewing a refusal, the Board must consider continuity of care and the possible effect on the child of disruption of that continuity.

19When an application to adopt is made, the Society must assess it and inform the applicant of its decision. If the interpretation of the Society was correct, it would mean that a person who wishes to adopt a child, who goes through the assessment process of the home study and the PRIDE courses and is finally refused before the child is made a Crown ward would not have access to a review before the Board but a person refused after the child is made Crown ward would have that right.

20In a section 144(1) application hearing, the decision of the Board will depend on the circumstances of the case and where the applicant in question is in the adoption process. In Family Youth & Child Services of Muskoka v. D.M. and C.M., 2010 ONSC 6018, the court confirmed the authority of the Board to order the placement of a child for adoption with an applicant. However, and contrary to the position argued by the Society, the Board will not and cannot order a placement for adoption, unless the legal conditions are met. The Board does not interpret its authority to make an order in a way that would disrespect a proper application of the Act.

21The Board has the authority to confirm or rescind the society’s decision to refuse the application to adopt by deciding what action is in the best interest of the child. The Board’s remedial authority is found in section 144(11)

Board decision

(11) The Board shall, in accordance with its determination of which action is in the best interests of the child, confirm or rescind the decision under review and shall give written reasons for its decision. 2006, c. 5, s. 36.

22The Board will determine which action is in the best interest of the child and will take into consideration in making its determination the status of the child and the stage of the adoption process. (…..)

5While the Board has jurisdiction, it must exercise its authority in an expeditious and proportionate manner, as set out in its Rules of Procedure (Rule A3.1). In V.T., the Court proceedings had been adjourned and were not proximate in time to the application before the Board. In the application currently before the Board, the crown wardship proceedings are scheduled a month away. There is a possibility that the Board’s process will be rendered moot if the child is not made a crown ward. Further, based on the role of the paternal grandparents in those proceedings, there is also the possibility of a competing adoption plan being put forward. It is in the best interests of the child that planning not be done in a vacuum when certainty about a child’s status is on the immediate horizon. The timing of the status review application means that there could be some immediate certainty about the child’s status. Therefore, the practical approach is to adjourn these proceedings until after the February 2015 date. However, if the status review is delayed, the Board would have to reconsider its decision to adjourn these proceedings.

Findings and Orders

6The Board finds:

(a) It has jurisdiction to hear the application; and,

(b) The Board orders that the application be adjourned until after the February 2015 status review date.

(c) The Society shall provide the Board and the Applicants with an update on the child’s status following the February 2015 date.

Confidentiality Order

7Pursuant to Rules 30.1 and 30.2 of the Board’s Rules of Procedure parties and their representatives must not use, share, discuss or disclose any Board documents or decisions or any other documents or information provided or used in this application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board’s proceedings, except with an order of the Court or the Board, as appropriate.

RICHARD LINLEY

______________________

Richard Linley

Board Member