LB and TB v Family & Children’s Services of the Waterloo Region, 2020 CFSRB 42

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

LB and TB Applicants

-and-

Family & Children’s Services of the Waterloo Region Respondent

DECISION

Adjudicators: Michele O’Connor Date: May 7, 2020 Citation: 2020 CFSRB 42 Indexed As: LB and TB v Family & Children’s Services of the Waterloo Region (CYFSA s.192)

WRITTEN SUBMISSIONS

LB and TB, Applicants Charlotte Murray, Counsel

Family & Children’s Services of the Region of Waterloo, Respondent Sherry Currie, Counsel

ME (Added Party) C-A E (Added Party) NC (Added Party) Andrew J. Kania, Counsel Walter Wintar, Counsel Brent Balmer, Counsel

Society Motion for an Adjournment

1This is an Application under s. 192 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched. 1 (the “Act”), seeking a review of the Society’s decision to refuse the Applicant’s application to adopt the child CE, born June 28, 2017. She has been in their care since she was one week old

2The Society seeks to adjourn the hearing dates and vacate all filing deadlines “to be rescheduled on a date to be determined by the Board taking into account the current public health COVID 19 crisis”. The purpose for the adjournment is to “provide the opportunity for family, extended family and community to be properly investigated and considered, as required by An Act respecting First Nations, Inuit and Metis children, youth and families, S.C. 2019, c.24 (the “Federal Act”).

3The hearing is currently scheduled for 10 days commencing June 16 through July 3, 2020.

4The Motion was heard by written submissions. The Applicants and the added party, ME, oppose the Society’s Motion. NC and CAE (also added parties) do not oppose or support the Motion. The Algonquins of Greater Golden Lake First Nation Chief Mielke made no submissions on the motion. She indicated in the teleconference on April 6, 2020, that the adjournment should be granted although she admittedly does not know the background. She said she would like to see a caseworker take a closer look at a First Nations plan for the child. Her community is not offering a plan.

5Having considered the affidavit materials, Facta and Books of Authority filed by the parties, the Child and Family Services Review Board (CFSRB) dismisses the Society’s motion.

6Reasons for this decision are set out below.

Analysis

7S. 21 of the Statutory Powers Procedure Act (SPPA) R.S.O. 1990, c.S22 affords the CFSRB discretion to grant an adjournment “where it is shown to the satisfaction of the Tribunal that the adjournment is required to permit an adequate hearing to be held.”

8The Applicants oppose the Society’s request on the basis that it is not in the child’s interests to continue her insecure status and delay permanency planning for her when she has been in the extended care of the Society for more than a year and in the physical care of the Applicants for almost 3 years.

9The maternal grandfather (ME, an added party in these proceedings) opposes the Society’s request primarily on the basis that the Society has known of CE’s possible status as an Indigenous child since at least September of 2018. He has detrimentally relied on the Society’s repeated assertions to him and his counsel that his granddaughter would remain with the Applicants with whom he enjoys a good relationship and regular access. He raises a number of issues in his materials which are related to a determination of the child’s best interests and are more appropriately dealt with in the hearing on the merits.

10The Applicants and ME also question the child’s Indigeneity and the application of the Federal Act, but I find that this issue is more appropriately explored in the context of the hearing on the merits as well.

11Both the Applicants and ME are concerned about further delay and the indefinite term of the Society’s adjournment request.

12The Society asserts that it is not seeking an “indefinite” adjournment. “They are requesting an adjournment period of six (6) weeks from the relaxation of public health restrictions” (due to COVID 19).” This clearly establishes that the term is indefinite however that is not dispositive of the issue.

Is the adjournment required to permit an adequate hearing to be held?

13The Society argues that the Federal Act imposes a mandatory obligation on it to undertake a process of reassessment on an ongoing basis “to determine whether it would be appropriate to return an indigenous child to his or her parents or family if the child is placed elsewhere. … The Society plans to assess any and all family plans that come forward as well as community plans from Greater Golden Lake. This process will potentially give (CE) the opportunity to be placed with family and, if not with family, with another Indigenous adult, as required by the Federal Act. …The process of reassessment, and the purpose of the adjournment, is to allow those options to be explored.”

14The Society acknowledges that it had some knowledge of the child’s Indigenous background in 2017 and 2018 but took none of the steps it asserts are necessary now. It further acknowledges that following the extended care Order on April 16, 2019, it was planning for the Applicants to adopt CE and that ME did not seek to be added as a party during the litigation because he understood that CE was to be adopted by the Applicants.

15Paternal aunt NC (an added party in these proceedings) submitted her plan for CE in May 2019. Through her, the Society learned of the connection to the Algonquins of Greater Golden Lake First Nation. NC had earlier presented a plan but withdrew it in 2018. Her Kinship assessment and SAFE assessment have been approved by the Society.

16On October 28, 2019, the Society notified the Applicants that their application to adopt CE was refused. On November 5, 2019 they filed this application to the CFSRB for a review of that decision.

17The Society says that it will conduct a reassessment of the following persons, but cannot begin such process until after the COVID 19 public health restrictions have been lifted and they will need 6 weeks after that: the biological mother (CAE) and maternal grandfather (ME), both of whom are parties to this proceeding and strongly in support of the Applicant’s plan for the child; paternal aunt (NC) whose SAFE Homestudy was recently completed and approved although her recent position is “unsettled and unclear”; and,the Society would “further consider” GC (a paternal uncle) “and any other adult related to the paternal family who indicates a willingness to care for CE”.

18COVID 19 public health restrictions have only been in place since mid-March of 2020. The Society was aware the new Federal Act was coming in 2019 and it became effective January 1, 2020. It has had ample time to conduct the “reassessment” referenced above, except perhaps with the paternal extended family. The biological father passed away in 2018. There is no indication in the evidence before me that any member of his family has come forward with a plan for CE since his death, except for NC.

19I agree with the Applicant’s submissions regarding the effect of delay and that it should be avoided wherever possible as it is never in the best interests of children. Statutory imperatives throughout the CYFSA are clear and obligate all concerned to move expeditiously toward permanency with every child in extended care of a Society, especially those younger than 6 years.

20The CFSRB also has timelines within which an application is to be heard and determined.

21The issue in this application for review by the CFSRB is the Society’s decision to refuse the Applicant’s application to adopt CE. Pursuant to s. 192(11) of the CYFSA the CFSRB 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.

Decision

22The CFSRB has reviewed the voluminous materials filed pertaining to the adjournment request and is of the view that compelling circumstances do not exist for the granting of an adjournment over the objection of other parties. It is clear on the evidence that an adjournment in this matter is not required to permit an adequate hearing on the merits. The issue is as between the Society and the Applicants. The evidence to make a determination of that issue is available now.

23The hearing in this matter is scheduled to begin on June 16, 2020. The Society’s motion for an adjournment is dismissed.

Confidentiality Order

24Pursuant to Rules 9.3 and 9.4 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.