PD v. Highland Shores Children's Aid Society, 2017 CFSRB 31

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

PD and CD Applicants

-and-

Highland Shores Children’s Aid Society Respondent

DECISION

Panel: Jennifer Scott, John Spekkens, Jay Sengupta
Date: December 21, 2017
Citation: 2017 CFSRB 31
Indexed as: PD v Highland Shores Children's Aid Society (CFSA s.61)

APPEARANCES

PD and CD, Applicants
Candice Pilgrim, Counsel

Highland Shores Children’s Aid Society, Respondent
Christopher Rous, Counsel

Office of the Children's Lawyer
Heather Smith-McGurk, Counsel

Introduction

1This is an Application filed under s.61(7.1) of the Child and Family Services Act, R.S.O.1990, c. C.11, as amended (the “Act”), seeking a review by the Child and Family Services Review Board ("Board") of the decision to remove [name], born [date], (the “Child”) from the home of the foster parents, who are the applicants in this matter. The Child, a crown ward, had been in the applicants’ foster home for almost 14 years. He had a number of seriously disabling conditions and required significant care.

2The respondent society removed the Child from the home on the same day it sent a letter, dated June 23, 2017, giving the applicants notice of the removal and closing their foster home.

3The Board received this Application on June 30, 2017. The Board held a teleconference on July 14, 2017 to provide directions to the parties with respect to the filing of a Response, to set disclosure and filing deadlines and to prepare for the hearing to be held on August 17 and 18, 2017.

4A second pre-hearing teleconference was held on July 24, 2017 at the request of newly retained counsel for the applicants. The Office of the Children’s Lawyer (”OCL”) had also appointed counsel in this matter. On the consent of the parties, the hearing dates were rescheduled for August 18, 22 and 23, 2017.

5On July 25, 2017, the Board was notified by the respondent that the Child had passed away on the morning of July 25, 2017.

6In the circumstances, the hearing dates were vacated and the matter held in abeyance until such time as the parties were in a position to provide submissions on whether the Application could proceed.

7The respondent society took the position that the Application before the Board is moot. The applicants disagreed. Following a period of time, the Board convened a preliminary hearing to hear submissions from the parties on the issue of whether the Application could proceed. The preliminary hearing took place on September 8, 2017.

8The Application is dismissed for the reasons that follow.

the law

9The relevant portions of section 61 of the Act read as follows:

61(6) The society having care of a child may remove the child from a foster home or other residential placement where, in the opinion of a Director or local director, it is in the child’s best interests to do so.

(7) If a child is a Crown ward and has lived continuously with a foster parent for two years and a society proposes to remove the child from the foster parent under subsection (6), the society shall,

(a) give the foster parent at least 10 days notice in writing of the proposed removal and of the foster parent’s right to apply for a review under subsection (7.1)

(7.1) A foster parent who receives a notice under clause (7) (a) may, within 10 days after receiving the notice, apply to the Board in accordance with the regulations for a review of the proposed removal.

(8) Upon receipt of an application by a foster parent for a review of a proposed removal, the Board shall hold a hearing under this section.

(8.6) The Board shall, in accordance with its determination of which action is in the best interests of the child, confirm the proposal to remove the child or direct the society not to carry out the proposed removal, and shall give written reasons for its decision.

(8.7) Subject to subsection (9), the society shall not carry out the proposed removal of the child unless,

(a) the time for applying for a review of the proposed removal under subsection (7.1) has expired and an application is not made; or

(b) if an application for a review of the proposed removal is made under subsection (7.1), the Board has confirmed the proposed removal under subsection (8.6).

(9) A society may remove the child from the foster home before the expiry of the time for applying for a review under subsection (7.1) or at any time after the application for a review is made if, in the opinion of a local director, there would be a risk that the child is likely to suffer harm during the time necessary for a review by the Board.

analysis

The Parties’ Positions

10The respondent society raised two arguments. Its first position was that the Board lacks jurisdiction to hear this Application because the applicants were no longer foster parents at the time that they filed the Application because their foster home had been closed when the Child was removed.

11The society’s second argument was that this is a case where the Board has no remedy to offer given the Child’s death, as the Board can either confirm or rescind the decision of the society on the basis of what action is in the best interests of the Child, as opposed to what was in his best interests at the time of removal.

12The applicants took the position that the Board has jurisdiction to hear the Application and that the Application has not been rendered moot by the Child’s death. They argued that he should never have been removed from their foster home. They took the position that the Act exists, in part, to ensure procedurally fair decisions are made with respect to foster children and foster parents. Finally, they argued that there is a live issue to be decided in this case – specifically why the Child was removed from their home in what they view as a procedurally unfair manner. In their opinion, the removal materially contributed to his death and could not be seen to have been in his best interests.

13While they have written to the Office of the Provincial Advocate for Children and Youth and to the Regional Supervising Coroner seeking investigations or inquests into the circumstances of the Child’s death, they argued this Board also has a role to play in reviewing the removal of the Child from their foster home.

Jurisdiction

14The Board finds it has the jurisdiction to hear this Application for the reasons that follow.

15The respondent society does not dispute that the Child was a crown ward. It also does not dispute that the Child came to the applicants’ foster home before he turned 1 and remained there until his removal at the age of 15, some 14 years later. However, it argues that the applicants were not foster parents at the time that they filed the Application on June 30, 2017, because the respondent closed their foster home when it removed the Child 7 days earlier on June 23, 2017.

16To accept this argument would result in an absurdity. A society could simply close a foster home upon removal of a crown ward who had been in that home continuously for over two years, resulting in the loss of the right of foster parents to seek a review of the society’s decision to move the child under s.61 of the Act.

17The fact is that these applicants were foster parents at the time the Child was removed. The respondent society’s letter dated June 23, 2017 acknowledged their status as foster parents with whom a crown ward had lived continuously for more than two years. The letter also indicated that the respondent intended to change the Child’s placement and close the applicants’ foster home on an involuntary basis on the same date.

18The right to seek a review under s.61 stems from the applicants’ status as foster parents at the time of removal rather than at the time they file the Application. Accordingly, the Application is within the jurisdiction of the Board.

Mootness

19While the matter is within the jurisdiction of the Board, the Board will not proceed to hear this Application for the reasons that follow.

20The Board, following the approach laid out in Borowski v. Canada (Attorney General) 1 S.C.R. 342 at paras.16 and 17, stated in Applicants v. Jewish Family and Child Services of Toronto, 2011 CFSRB 16, para 51:

In order for a matter to be moot, it is necessary to first determine if the “required tangible and concrete dispute has disappeared and the issues have become academic’. If there is still a “live controversy” the issue is not moot and there is no need to enquire further.

21The Board’s jurisdiction is defined in the Act. The Board’s mandate, upon receipt of an application filed under s.61(7.1) of the Act, as outlined in s.61(8.6), is “to confirm the proposal to remove the child or direct the society not to carry out the proposed removal”, and to do so “in accordance with its determination of which action is in the best interests of the child” following a hearing into the matter.

22The thrust of the applicants’ arguments was that that they have unresolved and unanswered questions about the reasons for the removal and the allegedly flawed manner in which it was carried out.

23However, in a hearing into an application filed under s.61, the focus of the Board’s inquiry is not the process followed by the respondent in making its decision to move or remove a child from a foster home but on the substance of the decision.

24In other words, the Board is required to decide whether the removal or proposed removal should be confirmed or whether the society should be directed to either not remove the child or return the child to the foster home in accordance with the Board’s determination of what is in the best interests of the child. It is not an inquiry into whether the appropriate procedure was followed by the respondent society in arriving at its decision.

25In this case, the issue of concern to the applicants – why the Child was removed from their care – is not the central issue before the Board. Under s.61 of the Act, the Board must determine, at the time of the hearing, what action is in the best interests of the Child – to remain with the applicants or not.

26In these very sad circumstances, the Board is unable to make this determination. As such, the issue in dispute between the parties has become academic and it is for this reason that the Application is moot. While the Board empathizes with the applicants’ need to understand why the Child was removed from their care after 14 years, that understanding cannot be gained through this Application before the Board. Accordingly, the Application is dismissed as moot.

confidentiality order

27Pursuant 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.