JT and CT v Windsor-Essex Children’s Aid Society, 2019 CFSRB 74

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

JT and CT

Applicants

-and-

Windsor-Essex Children’s Aid Society

Respondent

INTERIM DECISION

Adjudicator: Catherine Bickley

Date: November 7, 2019

Citation: 2019 CFSRB 74

Indexed As: JT and CT v Windsor-Essex Children’s Aid Society

(CYFSA s.109 & 192)

INTRODUCTION

1These are Applications filed with the Child and Family Services Review Board (“CFSRB”) under section 109(8) and section 192(3) of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1 (the “Act”).

BACKGROUND

2The Applicants became foster parents of the child, SG, in October 2016 when she was one year old. On April 11, 2019, they submitted a plan to adopt SG.

3On May 24, 2019 the Respondent decided that it preferred the adoption plan put forward by the foster parents of SG’s sibling. A staff member verbally informed the Applicants of that decision.

4On June 7, 2019, the Applicants sent a letter to the Respondent appealing the decision to refuse their adoption application. This prompted the Respondent to send the Applicants letters dated June 17 and 20, 2019 confirming the decision. The Applicants met over the summer with Respondent staff members regarding the decision.

5On September 17, 2019 the Respondent moved SG from the Applicant’s home to her sibling’s foster home. The Respondent’s intend that SG be adopted by her current foster parents.

6The Applicants filed the Applications on September 26, 2019.

7At the first day of hearing on October 9, 2019 two preliminary issues were identified:

• Does the June 20, 2019 letter satisfy the notice requirements in subsections 192(2)(a) and 192(2)(b) of the Act?

• Did the Applicants receive notice under subsection 109(7)(a) of the Act and, if so, was Application CA190-0211 filed within 10 days of that notice?

8On November 1, 2019, the parties presented evidence and made submissions on these preliminary issues.

The law

9The relevant portions of section 109 of the Act are as follows:

Change of placement

(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.

Notice of proposed removal

(7) If a child is in extended society care … 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 (8); …

Application for review

(8) 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.

10The relevant portions of section 192 of the Act are as follows:

Decision of society or licensee

192 (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

(b) a society or licensee decides to remove a child who has been placed with a person for adoption.

Notice of decision

(2) The society or licensee who makes a decision referred to in subsection (1) shall,

(a) give at least 10 days notice in writing of the decision to the person who applied to adopt the child or with whom the child had been placed for adoption;

(b) include in the notice under clause (a) notice of the person’s right to apply for a review of the decision under subsection (3); …

Application for review

(3) A person who receives notice of a decision under subsection (2) may, within 10 days after receiving the notice, apply to the Board in accordance with the regulations for a review of the decision subject to subsection (4).x.

ANALYSIS

11The Respondent submits that it gave the Applicants notice that satisfied the requirements of sections 109(7) and 192(2). The Respondent submits that the Applicants had written notice of SG’s proposed removal through transition calendars in July, August and September and, in any event, had notice of the exact date of removal at a September 5, 2019 meeting at the latest. The Respondent submits that the June 20, 2019 letter and attached pamphlet provided the notice required by section 192(2).

The purpose of the notice requirements

12The notice requirements in the Act are mandatory. They serve several important purposes. First, they notify foster parents and prospective adoptive parents of decisions that significantly impact their lives and the lives of children in their care (or who they hope will come into their care). Second, they tell foster parents and prospective adoptive parents that they have a right to have those decisions reviewed by the CFSRB. Third, they provide clarity about the time period in which foster parents and prospective adoptive parents can apply to the CFSRB. That period is very short – only 10 days from when notice is received. This short time period ensures that children and families do not remain in a state of uncertainty for a prolonged period. For these reasons, it is essential that notices under sections 109(7) and 192(2) be crystal clear.

13The Respondent submits that the Act does not stipulate a specific format of written notice under either section. The CFSRB, however, has found that when an adoption application is refused written notice to the prospective adoptive parents must make specific reference to the applicable section of the Act and use the wording from that section. In a decision dealing with section 144 (now 192) the CFSRB stated:

… a notice from a Society under s.144(2)(a) [now s.192(3)(a)] must include a specific reference to s.144(3) and use the wording from this provision to satisfy the requirement in s.144(2)(b) of the Act. Preferably this notice letter would also include the name, address, telephone and facsimile numbers for the Board and reference to the Board website … [emphasis added]

JC & TB v. Children’s Aid Society of the Regional Municipality of Waterloo, 2011 CFSRB 2 at para 10.

14The underlying rationale for that requirement applies equally to section 109 for the reasons set out in paragraph 12 above.

15Thus, when an adoption application is refused or a children’s aid society intends to move a child from a foster home, the foster parents or prospective adoptive parents must be told explicitly about their appeal rights including the time limits to appeal.

16I now turn to looking at the documents which the Respondents submit met the statutory requirements. I will look first at the June 20, 2019 letter and attached pamphlet which the Respondent argues meet the requirements of section 192(2). I will then look at the series of transition calendars which the Respondents argue, alone or in combination with the June 20, 2019 letter and conversations with Respondent staff, meet the requirements of section 109(7)

The June 17 and June 20, 2019 Letters

17In response to the Applicants’ June 7, 2019 letter appealing the Respondent’s May 24, 2019 decision, the Respondent wrote to the Applicants on June 17, 2019 restating its position that SG and two of her siblings would “be placed together in the chosen adoptive home.” The Respondent again wrote to the Applicants on June 20, 2019, referring to “the decision that the agency has decided not to place [SG] with you in an adoptive placement”, and stating:

We understand this is a difficult decision for you and want to inform you that you are entitled to request a Child and Family Services Review Board hearing regarding this decision. Specific information with respect to a (sic) CFSRB can be found on the Ministry’s website and the (sic) on the WECAS website as well. I have also enclosed the Procedures for Service Complaints pamphlet as well for your review.

18The Respondents say the June 20, 2019 letter was sent by email. The Applicants maintain that it was sent by regular mail and was not read immediately as they were going on vacation. The Applicants acknowledge that the letter was read by no later than July 2019. The exact date on which the letter was received and read is not determinative of the issues before me.

19The Respondent’s witnesses described the Procedures for Service Complaints pamphlet as “the CFSRB pamphlet” which “outlines the whole procedure for making a complaint to the CFSRB”. This description is incorrect. The pamphlet encourages people to first try to resolve concerns with their assigned worker, then the worker’s supervisor, followed by a request for an Internal Complaint Review Panel. The only mention in the pamphlet of the CFSRB is as a step that comes after an individual has exhausted all internal complaint processes. There is nothing in the pamphlet that even hints at the 10 day time period for filing section 109 and 192 applications with the CFSRB. The pamphlet is clearly applicable to service complaints under sections 119 and 120 of the Act rather than situations in which the refusal of an adoption application or proposed removal of a child from a foster home are at issue.

20CT testified that it was the Applicants’ understanding that the correct protocol was to move forward with an internal complaint. As a result, the Applicants wrote the June 7, 2019 letter, characterized by the Resource Worker in her testimony as “a letter of appeal”. The Applicants met with Respondent supervisors on August 1, 2019 and with the Respondent’s Director, Permanency and Children’s Services, on August 16, 2019. They also met with Respondent staff and the other family on September 5, 2019.

21I find that the June 20, 2019 letter and attached pamphlet did not meet the requirements of section 192(2). Neither document included a specific reference to section 192(3) or used the wording of that section. Nor did either document reveal that there was a 10 day time limit on filing an appeal. Instead, the pamphlet misled the Applicants into using an internal process to challenge the refusal of their adoption application.

22The Respondent led some evidence to suggest that the Applicants nonetheless had constructive notice of the adoption refusal and plan to move SG. The CFSRB has been clear that constructive notice is not sufficient: NC v. Kunuwanimano Child and Family Services, 2018 CFSRB 28. As a result, it is not necessary to determine this issue.

23Any argument that the June 20, 2019 letter and attached pamphlet constituted notice under section 109 must fail for the reasons set out above. The rationale and requirements for notice under section 109(7) are similar to those under section 192(2). In both situations, explicit notice of the right to appeal to the CFSRB including the 10 day deadline is required.

The transition calendars

24The Respondent acknowledges that it did not give the Applicants formal written notice under section 109. It submits, however, that the series of transition calendars provided to the Applicants fulfilled the requirement for written notice that SG would be removed from their home. This argument cannot succeed.

25There were multiple transition calendars for August and September 2019. The Adoption Supervisor testified that different calendars were emailed to the Applicants on July 7, July 24, July 29, August 9, August 12 and a further calendar was shared verbally with them on September 12.

26The calendars vary significantly. One lists August 23 as the date on which SG will be placed with the other family. There is a question mark beside that entry. A subsequent calendar shows SG “on relief” with the other family from August 23 to September 1. Yet another calendar lists September 6 as the date that SG will be placed with the other family. The next September calendar no longer has the September 6 entry but instead contains a note stating “Re-assess Transition Schedule .. move into October.” Finally, the calendar which the Respondent says was shared verbally with the Applicants has an entry for September 17 stating “Celebration party? Placement date”.

27I find that the transition calendars did not provide the notice required by section 109(7). They contain varying dates on which it was proposed that SG would be moved. They were provided to the Applicants at a time when the Applicants were still meeting with supervisors and a director of the Respondent to express their concerns about the decision to move SG. They make no reference to any right of appeal to the CFSRB.

The Applications are timely

28The Applications were filed nine days after SG was removed from the Applicant’s home. In other words, as soon as there was certainty about the removal of SG, the Applicants filed an Application challenging that removal. SG’s placement with the other family, although not yet an official adoption placement, also made clear that the Respondent was not going to change its mind about refusing the Applicants’ adoption application.

SG’s removal from the Applicants’ home contravened the Act

29The 10 day time limit for filing an application to the CFSRB means there is only a very short time period of uncertainty about whether a children’s aid society’s decision to refuse an adoption application or remove a foster child will be challenged. The expectation is that any such application will be heard and decided quickly by the CFSRB. The Act is explicit that a child must remain in the foster home (section 109(16)) and/or must not be placed for adoption with “a person other than the person who has a right to apply for a review” (section 192(12)) until the expiry of the appeal period or the outcome of the review.

30As noted in NC, supra, these provisions “promote the best interests, protection and well-being of children by ensuring that their placements are disrupted as little as possible prior to the review period expiring or the decision being rendered by the CFSRB.” (para 82)

31Having failed to provide notice that complied with the Act, the Respondent should not have removed SG from the Applicants’ home. I find that it did so in contravention of the Act. I am not, however, making a finding as to whether it is in SG’s best interests to confirm or rescind the decisions challenged by these Applications. A hearing on the merits is required to determine that question.

conclusion

32For all of the reasons set out above, I conclude that the Respondent did not provide the Applicants with the required notice under section 109(7) of SG’s removal from their foster home. I also conclude that the Respondent did not provide the Applicants with the required notice under section 192(2) of their decision to refuse the Applicants’ adoption application.

33The Applications, filed within 10 days of SG’s removal from the Applicants’ home, are timely and will proceed to a hearing on the merits.

34As a result of the lack of notice required by the Act, SG was removed from the Applicants’ home in contravention of the Act.

next step

35A one-hour case management teleconference will be held at 3 p.m. on Wednesday, November 13, 2019.

order

36Applications CA19-0210 and CA19-0211 shall proceed to a hearing on the merits.

confidentiality order

37Pursuant 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 these Applications with anyone including through the media or on-line. 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.