M.L. and P.C. v. Children’s Aid Society of Toronto, 2017 CFSRB 8

CHILD AND FAMILY SERVICES REVIEW BOARD

M.L. and P.C. v. Children’s Aid Society of Toronto

REASONS

Date: March 20, 2017

Citation: 2017 CFSRB 8

Indexed as: M.L and P.C v. Children’s Aid Society of Toronto (CFSA s.144)

Introduction

1This is an Application made under s. 144 of the Child and Family Services Act, R.S.O. 1990, c.C11, as amended, (the “CFSA”). The Applicants applied to the Child and Family Services Review Board (the “Board”) for a review of the Respondent Society’s refusal of their application to adopt A.L-M., (the “Child”).

2The Applicants are the maternal grandfather (the Applicant grandfather) and step-grandmother (the Applicant step-grandmother) of the Child. Following the Child being made a Crown Ward in July 2015, they made an application to adopt her. A SAFE home study was initiated and following a period of assessment, the application was refused by way of a letter sent in November 2016. The Applicants seek a review of that decision.

3A hearing into this matter was held on January 26 and 31, 2017 and February 3, 14 and 16, 2017.

4During the hearing, the Board heard from a number of witnesses on behalf of the Respondent Society. The adoption worker who assessed the application to adopt made by the Applicants gave evidence, as did the adoption worker who assessed the Child’s foster parents (the Bs), who also seek to adopt her. Ms. B, the Child's foster mother, testified and the Board heard from the Respondent's adoption supervisor, a children’s services supervisor, a children’s services worker and a family service worker who had been involved with the Child.

5The Child’s biological mother gave evidence in support of the Applicants, as did the Applicant grandfather. The Applicant step-grandmother did not give evidence or attend the hearing, choosing instead to participate through the Applicant grandfather.

Adjournment of First Hearing Date

6The Applicants sought and were granted an adjournment of the first hearing date to permit the Applicant step-grandmother to attend and to address difficulties the Applicants had encountered in receiving the Respondent's documents.

Recording of the Hearing

7In communication sent to the Board on the eve of the hearing, counsel for the Respondent raised the issue of the use of a court reporter during the proceedings. The Board indicated it would address the issue at the commencement of the hearing and heard submissions from the parties on the first day of hearing.

8The Board may permit a party to have a court reporter record the hearing at the party's expense, upon request and at its discretion. This practice is discouraged because court reporters may lead to more formality, cause delay and many parties lack the financial resources to obtain a court reporter or order a transcript. When a court reporter is permitted, to ensure that all parties and the Board panel have the ability to access the transcript, the party that has obtained the court reporter must normally have transcripts produced and provide copies to the Board and the other parties at its own expense. The Board may waive this requirement, or make directions about the date the transcript must be produced. The official transcript will normally be considered part of the record of proceedings and be included in the record filed in court in respect of any application for judicial review.

9The Board granted the respondent’s request to have a court reporter present and directed that the Respondent produce and provide copies of the transcripts to the Applicants and the Board within 10 days of the close of the evidentiary portion of the hearing.

Decision of the Board

10On February 21, 2017, the Board released the following decision with reasons to follow:

Having considered the best interests of the Child, the decision of the Respondent Society to refuse to place the Child for adoption with the Applicants is confirmed under subsection 144(11) of the Child and Family Services Act (the “Act).

11These are the Board's reasons for its decision.

the law

12The relevant sections of the CFSA are set out below:

s. 136(2) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child’s physical, mental and emotional level of development.

3. The child’s cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.

6. The child’s relationships by blood or through an adoption order.

7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

8. The child’s views and wishes, if they can be reasonably ascertained.

9. The effects on the child of delay in the disposition of the case.

10. Any other relevant circumstance.

s. 144(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.

the facts

13The Child is now almost four years old. The Child's half sibling is in the custody of the Applicants. Until recently, the Applicant grandfather's mother lived with them and the Child’s half-sibling. By the time the hearing was held, she had moved into a long term care facility and was no longer living in the home.

14The Child was in her biological mother’s care at birth. She was initially apprehended by a Children’s Aid Society other than the Respondent Society when she was two weeks old and placed in a foster home. For geographical reasons, the Respondent Society took on responsibility for the Child and she was moved to a second foster home monitored by the Respondent Society three weeks later in August 2013.

15As a result of difficulties with feeding and digestion, the Child was moved to the B's foster home in October 2013. She remained there until her return to her biological mother in January 2014. Given the biological mother's mental health issues and lack of insight into the biological father's history of abuse, the Child was re-apprehended in June 2014 by the Respondent Society. She was returned to the care of the B family, with whom she has remained since. As noted above, her foster parents V.B. and S.B., have applied to adopt the Child and the Respondent Society supports that plan for the Child.

16The evidence of all the Society's workers who have interacted with the Child is that she has thrived in the care of the B family. The B family have two biological children, one older than the Child and the other younger. Her relationships within the B family and the foster mother are described by Society staff as strong, positive and secure.

17The Applicants did not contest this evidence. The Applicant grandfather’s view is that the Child would be equally able to adapt to new surroundings and relationships if she were to be adopted by him and his wife.

18The parties agree that when the Child was initially apprehended and came into the care of the Respondent Society, the Applicants were given an opportunity to present a plan for her care. They also agree that, at that time, they declined to do so. The Applicant grandfather testified that, at that time, they had recently been awarded custody of the Child’s half-sibling, suffered a fire and a flood in their home and were living in a trailer while awaiting repairs to their home to be completed. The Applicants did not believe that was an appropriate environment for a newborn child.

19The Applicant grandfather testified he has continued to support the Child’s biological mother since the birth of the Child. Despite difficulties posed by the geographical distances between his home community and the Child’s home and what he perceives to be unhelpful and unnecessary barriers placed in their path by the Society and the foster family, he and the Child’s half-sibling have continued access visits with the Child.

20The Applicants concede that there is conflict between the Applicant step-grandmother and the Child's biological mother. The biological mother did not support access visits between the Child and the Applicant step-grandmother and, as a result, the step-grandmother was not free to attend access visits until the Child was made a Crown Ward.

21The parties agree that in May 2015, the Applicant grandfather contacted the Respondent to indicate an interest in adopting the Child. Once the Child was made a Crown Ward in June 2015, the Applicants formally presented a plan to adopt her.

22Given that the Applicants lived, and continue to live, in a location served by another Children’s Aid Society, the initial plan was for the SAFE home study to be completed by the local agency close to their home and the results sent to the Respondent Society. Once the criminal record checks were obtained by the Applicants, the local agency declined to proceed with the SAFE home study on the basis of the Applicant grandfather's criminal history.

23The adoption supervisor then assigned an adoption worker from the Respondent Society to proceed with the SAFE home study, given the historical nature of the criminal record. The adoption worker also made arrangements for the requisite PRIDE training that all prospective adoptive parents must complete to be done in the Applicants’ home. Finally, she took steps to ensure that the Applicant step-grandmother was able to attend access visits with the Child.

24The process commenced and initial interviews were done by the adoption worker. By October of 2016, the SAFE home study had not yet been concluded.

25A number of concerns and issues were identified by the adoption worker that required follow up: specifically how the family would handle issues faced by the Child, perceived marital difficulties or discord, a lack of communication between the Applicants, disproportionate child care responsibilities and fractured relationships with each Applicant's adult children. The adoption worker also had concerns about the ongoing conflict regarding insurance claims for post fire and flood home repairs. At the time of the assessment, there was also a concern about the availability of a bedroom and adequate space for the Child. That concern was resolved following the Applicant grandfather’s mother move from the home.

26Another source of concern was the incomplete financial disclosures, incomplete and outstanding information about the Applicants’ adult children and other support system members. The adoption worker gave uncontroverted evidence that the Applicant step-grandmother had told her that her adult son, her therapist and the next door neighbour who assisted occasionally with the Child’s half-sibling would not support this application to adopt.

27Most concerning to her was what she perceived as the Applicant step-grandmother’s lack of commitment to the adoption. She based her perception on the fact that the Applicant step-grandmother did not attend the family group conference in October 2015 and has attended only two of a possible eleven access visits (in October and November, 2016) since December 2015. In addition, the adoption worker gave uncontroverted evidence that the Applicant step-grandmother made a disclosure to her in October 2016 that she felt her plate was too full and that she was too exhausted and stretched to commit to the adoption.

28As a result of this disclosure, as well as the unaddressed concerns outlined above, the Respondent Society made a decision to discontinue the SAFE home study process and refuse the Applicants' application to adopt. Both Applicants were invited to a meeting with the adoption worker and adoption supervisor. On that occasion, only the Applicant step-grandmother attended and she confirmed her concern about continuing with the application process. She asked about the possibility to ensuring ongoing contact between the Applicants and the Child’s half-sibling with the Child.

29At that meeting the Society confirmed its decision not to proceed with the adoption plan proposed by the Applicants and the letter precipitating this application was sent out.

analysis

Section 144

30In FCY Services of Muskoka v. D.D., 2010 O.J. No.5085, the Divisional Court described the approach to considering a s. 144 application as follows (at paras 20-22 emphasis in the original):

In this case, the pertinent provision is s. 144(11) of the CFSA, which states: "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".

The language of this section expressly requires the Board to make a determination as to what action is in the best interests of the child. If the decision under review is a refusal of an adoption application, the action relates to the entire adoption application process, which involves a number of distinct steps. Although action must be interpreted in the context of the decision under review (adoption application or removal from placement), it gives the Board broad authority to determine what should be done in the child's best interests within the confines of the decision/action under review.

The Board does not have parens patriae jurisdiction to determine best interests in relation to any action. Rather, its determination is confined to the parameters of s. 144. Put simply, the Board must determine whether the adoption application or placement is in the child's best interests having regard to the criteria set out in s. 136(2). If the adoption application or placement is in the child's best interests, the Board will rescind the Society's refusal decision. If it is not, the children's aid Society's decision will be confirmed.

31The Board is required to make a substantive decision, in the best interests of the Child and, in doing so, is mandated to take into account any of the specifically enumerated best interest factors that are relevant.

32In the case at hand, the Board focussed on paragraphs 1, 5, 6, 7 and 9 of s.136(2) which are reproduced below as they are the most relevant to the Child’s particular circumstances:

• The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs;

• The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family;

• The child’s relationships by blood or through an adoption order;

• The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; and

• The effects on the child of delay in the disposition of the case.

33The Child is now almost four years old. Although she has had a number of significant moves in her short life, she has been part of the family complement in the B's foster home in which she presently resides since just before her first birthday. Her relationships within the B family are, by all accounts, very positive and this foster family represents the only stability she has known.

34The Board finds that continuity of the present environment is desirable given the salutary effect it has had on the Child and that removal from that environment would not be in her best interest. Although the Board did not hear from any medical professionals treating the Child, it is concerned that a removal from that setting at this juncture could impact her emotional health, create disruption, feelings of grief, loss and devastation and a very real possibility of significant impacts on the Child’s mental health. This is of particular concern given the risk factors present for the Child and the biological mother’s mental health history.

35The Board is also mindful of the fact that the Applicant step-grandmother, who would be a significant part of the plan of adoption proposed by the Applicants, has seen the Child on only a handful of occasions in three and a half years and the Child does not have an emotional bond with her. This fact, coupled with the tension between both Applicants and their adult children, particularly given the strained relationship between the Applicant step-grandmother and the Child’s biological mother, are factors that weigh against rescinding the decision of the Respondent Society.

36Finally, the Applicant step-grandmother did not attend the hearing of the Application despite adjournments and rescheduling of dates done with a view to facilitating her attendance on at least one day of the hearing. This is of grave concern to the Board as it supports the Respondent Society’s conclusion that she lacks commitment to the adoption.

37During the course of the hearing, the Board made it clear that there was evidence before it about the Applicant step-grandmother’s misgivings about proceeding with the adoption and her lack of commitment to the adoption plan that needed to be addressed by her. Despite this, she elected not to attend or provide evidence to challenge the version of the meetings with Society staff that she attended without the Applicant grandfather during which she expressed those views.

38As a result of the Applicant step-grandmother's absence, the Board is left with uncontroverted evidence that one of the Applicants has communicated to the Respondent Society that she is not committed to the adoption plan. That fact amounts to an insurmountable obstacle for the Applicants. To state the obvious, it would not be in the Child’s best interest to be placed with the Applicants when it appears they are not fully committed to the adoption process.

39The Board has turned its mind to the importance of continuing the Child’s blood relationships. It is clear to the Board that the Applicant grandfather has made great efforts to maintain ongoing contact with the Child and both Applicants are sincere in their wish to establish and maintain a lasting bond between the Child, her half-sibling and her larger biological family. In this regard, the Board is encouraged by the foster mother’s stated commitment to encouraging and taking concrete steps to ensuring openness if the Child is eventually adopted by her and the foster father and the Respondent Society’s agreement with these views.

40In arriving at its conclusion that the decision of the Respondent Society not to place the Child with the Applicants for adoption should be confirmed, the Board is persuaded by a number of considerations relating to the best interests test. As outlined above, the preponderance of evidence supports the Society’s decision to keep the Child in her current environment and militates against placing her in the Applicants’ home for adoption.

41The Board finds, therefore, upon consideration of all relevant best interest factors that the decision of the Respondent Society should be confirmed.

order

42On February 21, 2017, the Board made the following Order:

Having considered the best interests of the Child, the decision of the Respondent Society to refuse to place the Child for adoption with the Applicants is confirmed under subsection 144(11) of the Child and Family Services Act (the “Act).

CONFIDENTIALITY ORDER

43Pursuant 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 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

44The Board will permit the use of its decision and these reasons in any adoption proceedings involving the Child.

T.Michele O

T. Michele O’Connor

Presiding Board Member

Gail Gonda

Gail Gonda

Board Member

Jay Sengupta

Jay Sengupta

Board Member