T.R. v. Children’s Aid Society of London and Middlesex, 2017 CFSRB 5

CHILD AND FAMILY SERVICES REVIEW BOARD

T.R. and A.R.

and

Parties

v.

Children’s Aid Society of London and Middlesex

INTERIM ORDER

Date: February 17, 2017

File Number: CA17-0009

Citation: 2017 CFSRB 5

Indexed as: T.R. v. Children’s Aid Society of London and Middlesex

(CFSA s.144)

introduction

1This is an application under s.144 of the Child and Family Services Act, R.S.O. 1990 c. C.11 (“Act”). This Interim Order addresses the issue of the Board’s jurisdiction to hear this application, raised by the Respondent Society during initial pre-hearing teleconferences held to provide the parties with directions concerning the hearing.

2On February 1, 2017, the Board issued a pre-hearing report, setting out the following timelines for written submissions on the issue of jurisdiction:

1. The Respondent Society will file written submissions on the issue to the Board on or before February 3, 2017, copying the parties.

2. The Applicants and the additional Parties will have until February 7, 2017 to file their submissions with the Board, copying the parties.

3The Board has received the written submissions from the parties. For the reasons that follow, the Board finds that it has jurisdiction to consider the issues raised by the Applicants in this matter.

4In the circumstances, the hearing into this matter will be deferred pending completion of the court process currently underway and scheduled for early March, 2017, during which the Respondent Society has indicated it will seek an order for crown wardship for the child who is at the center of this application.

ANALYSIS

5The Respondent argues that the Applicants’ initiation of the process under section 144 of the Act is premature. It asserts that there has been no formal application to adopt and, as a result, no refusal to place for adoption. Counsel for the Society argues that, in any event, the child in question is not available for adoption given that he is not yet a crown ward. She has confirmed that the child is the subject of a status review application, scheduled to be heard in March, 2017, during which the Society will be requesting that the child be made a crown ward. This information was also confirmed in the Society’s letter to the Applicants, dated January 11, 2017 that initiated this application.

6The Board notes that the subject line of that letter, authored and sent by the senior director of service includes the phrase “refusal of adoption plan” and that the final paragraph of the letter sets out the review process before this Board of the Society’s decision.

7It is not in dispute that the Applicants in this case have made their intentions with respect to permanency planning for the child clear. It is also apparent from the letter that prompted this application that they have put forward an “adoption plan”. As at the date of filing of this application, the child has not been placed for adoption with another person. The Society has confirmed that it has refused the plan put forward by the Applicants to adopt the child and consequently declined to proceed with an application to adopt, thereby denying it. The Society has also confirmed in its decision letter dated January 11, 2017 that it has decided to move forward with an alternate plan that includes placing the child with another family, specifically the adoptive parents of his half-sibling.

8In accordance with previous decisions of this Board interpreting its jurisdiction, this is sufficient to bring this matter within the Board’s jurisdiction pursuant to s. 144(1) of the Act.

9In this regard, I adopt the reasoning of the Board in V.T and D.T. v. Children’s Aid Society of London and Middlesex, 2012 CFSRB 50, paragraphs 15 to 22, as set out below:

This 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.

The 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.

The 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.

To 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.

When 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.

In 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.

The 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.

The 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. (…..)

10As acknowledged by the Board in J.M. v. Family and Children’s Services of the Waterloo Region, 2015 CFSRB 1 (“J.M.”):

While the Board has jurisdiction, it must exercise its authority in an expeditious and proportionate manner (…). 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.

11The matter of crown wardship is scheduled to be brought before the court in less than a month. As in J.M., there is a possibility that this application may be rendered moot. I agree with my colleague that it is in the best interests of the child that “planning not be done in a vacuum when certainty is on the immediate horizon”.

12In this case, as in J.M., the practical approach is to adjourn these proceedings until the March court dates have passed, following which the Board will seek an update from the parties and determine next steps.

13Accordingly, the Board, having found it has the jurisdiction to proceed to hear this application, directs that:

(a) the application be adjourned until after the March, 2017 status review date; and

(b) the Society is directed to provide the Board and the parties to this application with an update on the child’s status following the March 2017 date.

CONFIDENTIALITY ORDER

14Pursuant 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.