VF v Simcoe Muskoka Child, Youth and Family Services, 2019 CFSRB 22

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

VF and LF Applicants

-and-

Simcoe Muskoka Child, Youth and Family Services Respondent

-and-

BP and SP Added Parties

DECISION

Adjudicator: T. Michele O’Connor, John F. Spekkens, Gabrielle Pop-Lazic Date: April 25, 2019 Citation: 2019 CFSRB 22 Indexed As: VF v Simcoe Muskoka Child, Youth and Family Services (CYFSA s.192)

APPEARANCES

Christopher Murphy, VF and LF, Applicants Counsel

Caroline Gilchrist, Simcoe Muskoka Child, Youth and Family Services, Respondent Counsel

BP and SP, Added Parties Self-represented

Introduction

1This is an Application bought under s. 192 of the Child, Youth and Family Services Act, 2017, c. 14, Sched. 1 (the “Act”). The Applicants applied to the Child and Family Services Review Board (the “CFSRB”) for a review of the Respondent Society’s refusal of their application to adopt M (the “Child”). The Application was heard by the CFSRB on March 13, 14 and 15, 2019. On March 22, 2019 the CFSRB released its Decision rescinding the Society’s refusal and ordered it to proceed with the Applicants’ application to adopt the child with reasons to follow. These are those reasons.

BACKGROUND

2The Child, born 6 weeks premature, was apprehended from the care of her parents at birth. She was discharged from hospital 17 days later and placed in the Applicants’ care where she has remained since that time. At the time of the hearing the Child was 2½ years old.

3The Child, identified as high needs due to her premature birth, was placed with the Applicants who had been designated a specialized foster home. Several months after her placement, the Child was also diagnosed with a genetic anomaly known as a 15q11.2 microdeletion. This is a rare condition the effects of which are not fully understood. Common features of the disorder may include learning disabilities, behavioural and emotional disorders including attention deficit hyperactivity disorder and/or autism, and speech delays.

4While the Child had experienced some gross and fine motor delays, these were overcome with the assistance of physiotherapy and other collateral services. At the time of the hearing, the Child was meeting all of her developmental milestones and was not in need of any specialized services although the local resource consulting service remained involved given the uncertainty around how her genetic anomaly might manifest in the future.

5Early in their care of the Child, the Applicants advised the Respondent Society that they would be interested in adopting her. An adoption conference was held on July 12, 2017.

6Shortly afterwards, the Society began a process of family finding to determine if there was kin who would be able to put forward a permanency plan for the Child. Following that process the Added Parties, BP and SP, who are related to the Child through her father’s side, put forward an adoption plan.

7On March 13, 2018, shortly after the Child was made a Crown Ward, the Applicants wrote to the Society advising that they wished to adopt the Child. The Society responded that that it was in the process of assessing the kin family and that process needed to be completed before a permanency plan could be determined.

8The Applicants first applied to the CFSRB for a review of the Society’s decision after receiving the Society’s response in April, 2018. That application, which was assigned file number CA18-0100, was heard on May 10, 2018 at which time the CFSRB found that the application was not eligible for review as the Society had not refused the application to adopt.

9On December 17, 2018 the Society wrote to the Applicants advising them that the Society would not be approving their plan to adopt the Child as they had decided the Child’s permanency plan should be adoption by her kin family. After receiving this letter, the Applicants filed this Application.

Preliminary Matters

Addition of BP and SP as parties

10Prior to the hearing BP and SP (the P's), the prospective adoptive parents approved by the Society, sought to be added as parties. This request was not opposed by either the Applicants, or the Society.

11As the P's have an interest in the outcome of this proceeding and as their evidence goes directly to the question of what is in the Child’s best interests, the CFSRB granted the request pursuant to section 192(10) of the Act and Rule 26.1(d) of the CFSRB's Rules of Procedure.

the law

12This Application is governed by section 192 of the Act, the relevant portions of which are as follows:

(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; or

(6) Upon receipt of an application for review of a decision relating to a First Nations, Inuk or Métis child, the Board shall give notice of the application and of the date of the hearing to a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities.

(9) The following persons are parties to a hearing under this section:

1. The applicant.

2. The society or licensee.

3. In the case of a First Nations, Inuk or Métis child, the persons described in paragraphs 1 and 2 and a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities.

4. Any person that the Board adds under subsection (10).

(10) The Board may add a person as a party to a review if, in the Board’s opinion, it is necessary to do so in order to decide all the issues in the review.

(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.

13The test for CFSRB when reviewing a decision in an adoption refusal or removal from placement was established by the Divisional Court in Family Youth & Child Services of Muskoka v. DM and CM, 2010 ONSC 6018 (Muskoka) which provides a detailed analysis of the CFSRB’s mandate when making a decision in the best interests of a child.

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.

14The considerations to be applied under the best interest analyses are set out in s.179(2) of the Act.

(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,

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child’s physical, mental and emotional level of development,

(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child’s cultural and linguistic heritage,

(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,

(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, and

(viii) the effects on the child of delay in the disposition of the case.

15At the commencement of the hearing, the parties agreed that given the Child’s age, her views and preferences could not be ascertained and that this aspect of the test did not apply.

Position of the Parties

16The Respondent Society’s position is that it is in the Child’s best interest to be placed with biological family. The practice of the Society is to assess only one permanency plan at a time. As such, where there is a possibility of placing a child with kin, that plan is assessed first. Where that assessment deems that the proposed kin family has the capacity to meet the needs of the child no further plans are considered.

17The Society also stressed that placement with family would facilitate a connection to the Child’s Indigenous heritage, having found in the course of the family finding process that there was a connection to the Métis culture through a distant relation on the mother’s side, and a connection to the Blackfoot culture on the father’s side. As stated by the adoption manager who testified on behalf of the Society:

If we have two families who are able to meet the needs of the child, the kin family rises to the top because of connection to extended family and culture.

18The P's supported the position of the Society and further took the position that they were uniquely able to foster a sense of belonging for the Child because they were part of the family. Although they themselves had no Indigenous heritage, they asserted that they would be able to facilitate a deep connection to the Child’s Indigenous roots through BP’s education and experience working with First Nations peoples.

19The Applicants’ position was that family connection was only one factor that needs to be considered. They believed that removing the Child from their home and community would not only be detrimental to her best interests but would be devastating for her. They stressed that they were the only family the Child has known. They also stated that, although she was currently meeting her developmental milestones, this was due to their dedication and follow up with supportive services. They stressed that given the Child’s genetic anomaly, learning or cognitive delays could arise when she reached school age and that maintaining continuity in her home life as well as the supportive services that were available to her through the community were in her best interests.

Analysis

The importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community

20In the preamble to the Act the legislature has emphasized the importance of recognizing and honouring the connection of children to their First Nations, Inuit and Métis culture.

With respect to First Nations, Inuit and Métis children, the Government of Ontario acknowledges the following:

The Province of Ontario has unique and evolving relationships with First Nations, Inuit and Métis peoples.

First Nations, Inuit and Métis peoples are constitutionally recognized peoples in Canada, with their own laws, and distinct cultural, political and historical ties to the Province of Ontario.

Where a First Nations, Inuk or Métis child is otherwise eligible to receive a service under this Act, an inter-jurisdictional or intra-jurisdictional dispute should not prevent the timely provision of that service, in accordance with Jordan’s Principle.

The United Nations Declaration on the Rights of Indigenous Peoples recognizes the importance of belonging to a community or nation, in accordance with the traditions and customs of the community or nation concerned.

Further, the Government of Ontario believes the following:

First Nations, Inuit and Métis children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as members of their families, communities and nations.

Honouring the connection between First Nations, Inuit and Métis children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being.

For these reasons, the Government of Ontario is committed, in the spirit of reconciliation, to working with First Nations, Inuit and Métis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions.

21These considerations have been expressly incorporated into the best interests analysis through the adoption of section 179(2)(b).

22The Respondent Society stressed that the Child’s Métis heritage was one of the factors that favoured placement with family over the Applicants. The amended Act had not come into effect at the time that the Child was made a Crown Ward. As such there was no statutory finding regarding the Child’s Indigenous heritage, nor could there have been given the previous legislation’s emphasis on eligibility for status under the Indian Act as being a pre-requisite to such a finding.

23The family finding worker who testified on behalf of the Society indicated that in the course of contacting more than 70 family members during the family finding process it was discovered that there was a connection to the Métis community in Alberta through the maternal grandmother’s family. She testified that a copy of the maternal grandmother’s Métis card was provided to the Society, although it was not produced or entered into evidence in this proceeding. She also testified that there was connection to the Blackfoot community in Ontario through the father’s side of the family although no proof had been provided to the Society of this.

24BP is a cousin to the Child’s paternal grandfather. He testified that the Indigenous connection was through the Child’s paternal grandmother and not through his side of the family. He testified, however, that he would be able to facilitate the Child’s connection to her Indigenous heritage through his educational background and work experience with First Nations people.

25The Applicants’ evidence was that they did not have much knowledge about the Child’s Indigenous heritage, but that they were willing to learn and support that aspect of the Child’s background. They had enrolled her in a First Nations' pre-school to facilitate her exposure to Indigenous culture.

26The first issue that must be considered in weighing this factor in the best interests analysis, is to determine whether this section of the Act is engaged having regard to the evidentiary record before the CFSRB. While the Act has moved beyond a status based definition of Indigeneity, a finding that a child is First Nations, Inuit or Métis has significant consequences in a section 192 application including who should be provided with notice of the application and who is entitled to participate. More generally, under the interpretive provisions of the Act, “extended family” is defined in the case of a First Nations, Inuit or Métis child to include the band, First Nation, Inuit or Métis community to which the child belongs or identifies with.

27This issue was recently considered by Justice P.A. Hardman in Bruce Grey Child and Family Services v. AB-C, 2018 ONCJ 516 at paras 34-36, in the context of making a statutory finding under section 90(2) of the Act:

This finding ensures that a First Nations, Inuit or Métis community with connection to the child is recognized as a party and participant in the decision-making around that child. With the recognition comes the expectation that community may be able to help the society, parents and court make a plan addressing the best interests of that child.

It would appear that the intention of the amended finding is to help maintain and emphasize a child’s connection with his or her First Nations, Inuit or Métis heritage particularly through his or her cultural community.

Given the fact that the finding is made to ensure the right interested parties are served, there appears to be an underlying expectation that there be some identifiable connection between the child or his or her family and that particular cultural community.

28Justice Hardman went on to find at paras 41-42 that:

In this matter, there is only a suggestion of a possible connection that a relative may or may not have to an unidentified Métis community. In my view, that is not sufficient to support a finding that the child is a Métis child. It is important that the court have sufficient evidence of a connection of someone — the child, parent or named relative — to a particular band or identifiable community in order to make that statutory finding, identify that band or community as a party, ensure service to a designated representative and have the expectation that that band or community will have an interest in at least considering participating in the proceedings.

Although the definition should not be interpreted narrowly, it should not be made casually either. Any finding may impact the particular child and the parents, including litigation time, not to mention the First Nations, Inuit and Métis communities. The legislation does not suggest a focus on simply a biological connection, remote or otherwise, in making this finding. Indeed, had that been the intention, genetic testing would seem the only evidence required. However, this is not the case.

29Adopting this reasoning, the CFSRB finds that there is not sufficient evidence of the Child’s connection to a particular cultural community to engage consideration of section 179(2)(b) of the best interests analysis.

The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs and the child’s physical, mental and emotional level of development

30The evidence was undisputed that the Applicants had met or exceeded the expectations around their care of the Child. The local community services infant development worker who became involved with the Child due to her premature birth and whose role was to monitor the Child’s age and stage of development through the first 2 years of her life, testified that the Applicants were very proactive in seeking information to assist the Child in her development. She further testified they made it a priority to ensure that the services that were recommended for the Child were put in place and that the Child’s success in meeting her developmental milestones was due to the consistency that the Applicants provided and their proactive follow up with recommendations made by the Child’s therapists.

31This evidence was echoed by the local community resource consultant who assumed carriage of the Child’s file after she turned 2 years of age, and by the pediatrician who has been involved with the Child from her birth.

32The Society called the worker who had conducted the P's adoption home study. He testified that he had spent a number of hours discussing the issue of the Child’s complex needs with BP and that he was satisfied based on these discussions that the P's would be able to meet those needs. In arriving at this conclusion he noted BP’s experience working at a sports camp with children with complex needs. On questioning, the worker admitted that at the time of conducting the home study he was not aware of the specific medical needs that might arise for the Child nor did he ask any questions that were specific to her needs.

33BP and SP stressed in their evidence that the Child was meeting her developmental milestones and had been discharged from the specialized services that had been involved with her from birth. It was their understanding that the Child could face challenges in the future due to her genetic anomaly and that her cognitive development might be capped at some point in the future. However, they also testified that it was their understanding that as the Child was currently meeting her developmental milestones it was unlikely that the more serious consequences associated with the disorder would manifest in the future. They felt confident that they would be able to appropriately address any issues that might arise in the future for the Child given BP’s work experience with youth who have faced abuse and have disabilities as well as their experience providing respite care for relatives in their own family who had developmental delays.

The child’s cultural and linguistic heritage – possible Métis connection

34While we have found that there was not sufficient evidence to engage section 179(2)(b) of the Act, considerations of the Child’s heritage also factor into the best interests analysis under section 179(2)(c)(iii) and (iv). As set out above, neither the Applicants nor the P's had an affiliation to the Métis community in Alberta to which the Child had a connection. Both families indicated their willingness to ensure that the Child was exposed to Indigenous activities and education that would allow her to explore this aspect of her heritage. The Applicants live in close proximity to the Child’s maternal great grand-parents and have indicated their willingness to ensure that they have a continuing relationship with the Child.

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

35The Applicants are the only family the Child has known. They have cared for her since her release from hospital when she was 17 days old. The evidence of the Society’s witnesses, including the Child’s worker and the worker assigned to support the Applicants in their role as foster parents, was undisputed that the relationship between the Child and the Applicants was strong and loving. The Child referred to the Applicant as Mommy L.

36The worker assigned to support the Applicants in their role as foster parents testified that the attachment they had to the Child and her attachment to them was “exceptional”. She went on to testify the Applicants had done an exceptional job with the Child and they love her very much.

37The Applicant VF testified that although they had fostered approximately 35 children over the previous nine years, that there was something different about this Child and the way that she had responded to him and his wife. He testified how it is the little things that made them fall in love with her. The way she came to the door every time he came home. The Applicant LF testified that from the beginning the bond that had developed with the Child was special and that she hit a chord in their hearts. The Applicants fully consider the Child a part of their family.

38With respect to having a secure place in their family the Applicants testified that they have a large and close family. The Applicant VF testified that he is the eldest of 4 children in his family and that 2 of his siblings live within 10 minutes of his home. He advised that his family gets together about once a month as well as for holidays and that the Child has participated in those events.

39LF testified that she comes from a large family, that they have family dinners at least once a week at her parents’ home. She further testified that her sister was adopted by her parents and that her adoption history is fully integrated into the family tree that LF keeps as the family historian. She testified that if they are permitted to adopt the Child it is her intention to ensure that the Child’s biological family is also reflected as part of that family tree as is her sister’s.

40The P's have had significantly less contact with the Child and as of the date of the hearing had not had any extended or overnight visits with her. BP testified that the reason that they put themselves forward as adoptive parents was because it lines up with their values and they want to do what is in the Child’s interest. He testified that he grew up in a family of 5 children and that it was his and his wife’s expectation that they would also have a large family. When that didn’t happen they explored the possibility of adoption, but chose not to pursue that because the only way to grow their family was to be a foster to adopt home, which they did not want. He testified that when they learned that a little girl in their family needed a home they attended the family find meeting and believed that they would be a good household for the Child.

41We also heard evidence from JW who is BP’s cousin and the Child’s great uncle. He testified that their family got together infrequently. They had tried to have a family gathering annually, that had petered out. He testified that the family generally got together at funerals and weddings.

The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community

42The Respondent Society took the position that placement with family was better than placement with unrelated individuals. The Society failed, however to adduce any evidence with respect to the Child’s relationships and emotional ties to her parents or members of her extended family. In particular, the Society adduced no evidence with respect to the Child’s emotional connection or attachment to the P's. The worker who conducted the adoption home study admitted that at the time of completing the study he had not observed them with the Child and he did not know how many times BP and SP had seen the Child. The child in care worker testified that she had observed the Child with the added parties on a number of access visits. Early on she was present for the entirety of the visit. However, as the visits got longer she did not stay for the whole visit. It was her evidence that the Child was comfortable with BP and SP and interacted with them.

43It was BP’s evidence that at the time of the Child’s birth he had no contact with that part of the family and that no information regarding the Child came through the family. The first they learned the Child was in care and likely to be available for adoption was through the family finding process conducted by the Society.

44He further testified that their contact with the Child had commenced with monthly hour-long visits which progressed to bi-weekly three-hour visits and then, after December 2018, to weekly day-long visits.

45The P's also called MW and JW who are the Child’s great aunt and uncle and in whose home they had been exercising their day long access visits.

46MW testified that she had seen the Child with the P's about 10 times. It was her evidence that the Child was very comfortable with the P's family, that she wasn’t shy or apprehensive. She described their relationship as a good relationship noting that the Child would go to them for reassurance and that she plays well with their daughter.

47With respect to the Applicants, it was undisputed that the Child has a deep and meaningful connection with them. They have provided the Child with the only home that she had known since leaving the hospital at 17 days of age. Indeed, the Society relied on the fact of this attachment in asserting that it meant the Child would be able to form attachments to the proposed adoptive family.

48LF testified that over the first 16 months of the Child’s life, she had developed a good relationship with the Child’s biological parents. She had done her best to include them on special occasions, answering any questions or concerns that they might have. LF’s evidence was that she got along very well with the Child’s mother, who referred to her as the Child’s “second mom”. LF also testified that the Child’s parents had entrusted her with family jewelry to be put away for the Child when she is older. Although the relationship with the Child’s parents had ended with the Crown Wardship order, LF testified that she was open to fostering that relationship if it is determined to be in the Child’s best interest.

49In Children’s Aid Society of Toronto v. VF, 2013 ONCJ 503, Justice Spence considered the interpretation to be applied to this aspect of the best interests analysis. Specifically, he considered whether a biological connection was sufficient to meet this branch of the test. He found that giving it the broadest interpretation the term “relationship” could include biological connection as well as inter-personal connections, however he goes on to find that there has to be something more than a biological relationship and that one must consider whether a child is connected in a meaningful way to the other person, at para 62 emphasis in original,:

Obviously, there is a biological relationship between two of the children and the grandmother. However, there is certainly no inter-personal relationship between the grandmother (or any of the grandmother’s family in Jamaica) and these children. It seems to me that if we examine this from the perspective of these children, the existence of an inter-personal relationship, that is, whether the children themselves are connected in a meaningful way to another person, is more significant than mere biology, particularly where the children have never met the kin and do not even know of the kin’s existence.

50Adopting this analysis, the CFSRB finds that on the evidence before it, the Child in the present case has a significant relationship with and a meaningful connection to the Applicants. While this does not preclude the possibility that the Child could form such a connection with the P's, there was no evidence that, as at the time of the hearing, she had done so.

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

51There are two aspects of the Child’s continuity of care that are relevant to the present proceeding. One consideration is the importance of maintaining continuity in the professional care the Child is receiving, having regard to the risk of her developing cognitive, emotional or behavioural difficulties as a result of her genetic anomaly. A second, and perhaps more significant consideration is the effect that a disruption of the Child’s relationship with the Applicants, who have been her primary care givers since shortly after birth, would have on the Child.

52It was undisputed that the Applicants had provided the Child with a safe, secure and loving home. Furthermore, the Child had succeeded in reaching her developmental milestones in large part due to the dedication shown by the Applicants in ensuring that she received the supports that she needed and by following through with the recommendations of her physicians and associated service providers. The infant development worker who had been involved with the Child and the Applicants until the Child turned 2 testified that it was the consistency provided by the Applicants and the fact that they followed up on the suggestions given by the Child’s therapists that assisted the Child's progress with her development.

53This evidence was supported by the Child’s community resource consultant who took over carriage of her file after she turned 2. She also testified that she had stayed on the file at the request of the Applicants and with the approval of her agency so that she could monitor the Child’s progress as she got older given that she may require further services when she reached school age.

54Where the parties differed was in their views on whether the Child would require a continuity of these supports as she grew older. It was the Applicants’ position that it was important to maintain the relationship with the pediatrician, geneticist and other care givers who were her primary care givers given the uncertainty of how her condition would manifest as she got older.

55BP, who does not reside in the same community as the Applicants, testified that in the event that future support was necessary, they would be able to arrange for a local resource consultant. He also testified that a geneticist was available their local hospital who could be consulted regarding the Child’s needs in the future and that his family doctor and dentist would be able to provide care for the Child in the future as she needed it.

56With respect to the second consideration listed above, none of the parties sought to introduce expert evidence to address the question of what impact disrupting the primary care relationship would have on the Child. The Society took the position that as the Child had formed a strong attachment to the Applicants she had the capacity to transition that attachment to the P's. They provided no evidence on what the effects of disrupting the primary attachment would be for the Child. They also ignored the fact that a move from the Applicants’ home would lead to a period of mourning by the Child at the loss of the persons who, for her, are her mother and her father.

57The Applicants testified that the Child had started to demonstrate uncharacteristic behaviours as access with the P's increased. Both Applicants testified that the Child was more emotionally needy after access visits, that she would follow LF around and that she would become upset if they were not in the same room. They also testified that she had begun experiencing what VF described as night terrors where she would awake in the night crying or screaming and be difficult to soothe. LF testified that the Child experienced two types of distress. Sometimes she would wake up calling for her and be fussy, but easily soothed. The second type of occurrence she characterized as more serious where the Child woke up screaming and was difficult to soothe. These appeared to be associated with the longer access visits and had been persistent since July of the previous year. The Applicants testified that these had been reported to the Society but that the Society did not appear to take the issue seriously.

58The value of continuity was enunciated by the Supreme Court of Canada in Catholic Children’s Aid Society of Metropolitan Toronto v. M(C), 1994 83 (SCC) at para 3 :

(…) Within the realm of the “best “interests of the child”, the most important factor in this case concerned the psychological bonding of the child to the foster family. The emotional well-being of a child is of the utmost importance, particularly where the evidence points to possible long-term adverse consequences resulting from the removal of the child from his or her foster family and the return to his or her birth parents. The focus of maintaining family units is only commensurate as long as it is in the best interest of the child, otherwise it would be at cross purposes with the plain objectives of the Act. The best interests of a child require different solutions over time and such interests may have to take precedence over any parental interests.

59In the present case, it is undisputed that the Child is deeply attached to the Applicants who have provided her with consistent, supportive and loving care for most of her life.

60The evidence of all parties also agreed that the Child may be prone to experiencing future emotional, cognitive and developmental difficulties arising from her genetic anomaly. Given the rarity of her condition, however, it is not known what factors could exacerbate or accelerate the manifestations of negative outcomes or whether emotional stressors are such a factor.

61As there was no evidence that a disruption in this Child’s primary attachment to the Applicants would not be detrimental to her, the CFSRB cannot find that it is in the Child’s best interest to disrupt the relationship that she had formed with the Applicants particularly having regard to her special needs.

Conclusion

62The present proceeding requires the CFSRB to balance the significance of familial connections against the undisputed emotional connection that the Child has formed with the Applicants.

63The tension between these considerations was articulated in the Society’s letter of December 17, 2018 in which they advised the Applicants that their application to adopt the Child was refused:

While we fully acknowledge and appreciate the attachment that has grown between your family and [Child] which has helped her to thrive, in keeping with the new CYFSA legislation, our position continues to be that [Child] should be placed with her kin family.

64While respecting and maintaining connections to a child’s family of origin is a significant factor to be considered, it cannot be considered in isolation. The primary purpose of the Act is to promote the best interests, protection and well-being of children. The Act sets out all of the factors that must be considered where a child’s best interest is engaged.

65Having regard to all those factors, the CFSRB finds that disrupting the Child’s relationship with the Applicants would not be in this Child’s best interest.

Order

66On March 22, 2019 the CFSRB made the following Order:

The Society’s decision refusing the Applicants’ application to adopt the Child, M, is rescinded and the Society is directed to place the Child with the Applicants for adoption.

confidentiality order

62Pursuant to Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure, parties and their representatives must not use, share, discuss or disclose any CFSRB documents or decisions or any other documents or information provided or used in this Application with anyone, including through the media or online. The CFSRB prohibits the use of any of this information for any purpose outside of the CFSRB’s proceedings, except with an order of the Court or the CFSRB, as appropriate.