LM & LL v Children’s Aid Society of Ottawa, 2020 CFSRB 76

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

LM & LL Applicants

-and-

Children’s Aid Society of Ottawa Respondent

DECISION

Adjudicators: Catherine Bickley, Daniel McSweeney, John F. Spekkens Date: August 21, 2020 Citation: 2020 CFSRB 76 Indexed As: LM & LL v Children’s Aid Society of Ottawa (CYFSA s.192)

APPEARANCES

LM and LL, Applicants

Vasu Naik, Counsel

Children’s Aid Society of Ottawa, Respondent

Judith Hupé, Counsel

Introduction

1This is an Application filed on May 8, 2020 under section 192 (3) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1, (the “Act”).

2The Applicants LM and LL (the “Applicants”) have sought a review of the decision of the Children’s Aid of Ottawa (“the Respondent”) refusing their application to adopt their foster children LB and MB (“the Boys”). The Respondent was presented with adoption plans from the Applicants as well as a plan submitted by ML and JSP (the “Other Family”) who had adopted the Boys’ 3 half-sisters in 2015. The Society’s decision to refuse the Application was confirmed in writing in its letter sent to the Applicants on April 30, 2020.

3A video-conference hearing was held on July 22, 23, 24, 27, 28, 29, and 30, 2020. The Respondent called the following witnesses: Service Manager, Foster Care Resource Worker, Adoption Worker, and Children’s Worker, along with ML, the mother of the Other Family. Both the Applicants testified. Dr. Catherine Horvath (Clinical Psychologist) was called as an expert witness. The Applicants also filed affidavits from the Applicants’ friends and neighbours, and LM’s parents.

4The Child and Family Services Review (the “CFSRB”) finds the action that is in the best interests of the Boys is to rescind the Society’s decision to refuse the adoption Application of the Applicants, and to order the Respondent to take all necessary steps to complete the adoption process with the Applicants.

5An Order rescinding the Respondent’s decision to refuse the Applicant’s adoption plan was issued on August 6, 2020. The reasons for the Order and the accompanying recommendations are set out in this Decision.

The Law

6The paramount purpose of the Act is to promote the best interests, protection and well-being of children. The Preamble of the Act also acknowledges that children are individuals with rights to be respected and voices to be heard, and that service provided to children and families should be child centred.

7The relevant provisions of the Act, section 192, 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;

(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;(…)

(3) A person who received 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

(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.

8To make its decision, the CFSRB must also consider the over-arching considerations set out in the Preamble and Section 1 of the Act, as well as the enumerated factors in section 179(2). When making a determination in the best interests of the child, the CFSRB is specifically required to:

(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 decision-maker 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 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,

(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 effect on the child of delay in the disposition of the case.

BACKGROUND

The Boys

9The Boys are fraternal twins who are approximately 16 months old (born April 12, 2019). The Boys were born premature (35 weeks and 5 days). A review of the Boys’ Discharge Summaries (Exhibits 31 and 32) revealed the following:

• The Boys at birth tested positive for exposure to marijuana and cocaine and were treated for possible exposure to HIV and Hepatitis B;

• The Boys were born with low birth weight; had short-term difficulty breathing, feeding, and maintaining their body temperature;

• The birth mother did not have consistent prenatal care; and

• The birth mother was exposed to domestic violence while she was pregnant.

10The Boys were removed from the care of their parents immediately after birth as a result of concerns with drug use by both parents, the children’s testing positive for cocaine after their birth, the appropriateness of the parents’ housing, potential criminality of the father, and possible intimate partner violence.

11The Boys are Caucasian. Their mother is French Canadian and speaks both English and French; their father is a unilingual Anglophone. The Boys’ mother is Catholic. The Boys have 3 half-sisters (same mother) who were apprehended by the Respondent and placed for adoption in 2015.

12The Applicants visited with the Boys since they were six days old and LM visited regularly throughout the remaining time that the Boys were in hospital before being placed in their home on April 24, 2019. The Boys have remained in the care of the Applicants since being placed.

13The Boys were placed in Extended Society Care on November 25, 2019 (Exhibit 3).

14The Boys have participated in approximately 8 in-person visits and approximately 8-9 video visits with their half-sisters and their parents since January of 2020.

15The Boys are healthy and meeting their developmental milestones. MB had torticollis (tightened muscles on one side of the neck, which leaves a baby’s head at a tilt or rotation), which was addressed through physiotherapy and in-home exercises.

16The Applicants indicated an interest in adopting the Boys in a conversation with the Foster Worker in June of 2019, and again in September of 2019. The Applicants put forward a formal adoption application on March 2, 2020 after hearing from the Other Family in late February 2020 that the Other Family’s home study had been completed by the Respondent and that they were expecting their adoption plan to be approved within a week. A Permanency Planning Meeting was held on April 29, 2020, and a decision was made to approve the Other Family’s plan. The Applicants were informed of the Respondent’s decision to approve the Other Family plan by the Foster Worker and her Manager. Written notice of the refusal was sent to the Applicants on April 30, 2020.

The Two Families

17The Applicants’ family is composed of the parents, one daughter who is 6 years old, and extended family in the Ottawa area and beyond. The father is French Canadian, and the Mother is bilingual. Both parents are civil servants. The daughter attends a French Immersion school.

18The Applicants wanted to foster as they believed that they had a lot to offer a child who needs help. They also wanted to expand their family; however, this has not been possible because of medical challenges. The couple attended an adoption session in December of 2017 and subsequently decided to focus on fostering given the greater need for foster parents. (SAFE Home Study, Exhibit 24)

19ML and JSP have been together since 1997. The Other Family adopted the Boys’ 3 half-sisters in 2015, after they were placed with them in June of 2014. Both parents are French Canadian. The father works for a crown corporation and the mother is a stay-at-home caregiver who has worked part-time at her children’s school since the adoption.

20The Other Family wanted to establish a family through adoption given ML’s medical concerns. (Original Home Study 2015, Exhibit 35)

The Applicants’ Position

21The Applicants felt that, given the Boys’ young age (approximately 16 months), and given their history of past trauma in the prenatal period and around their birth, any disruption in the Boys’ placement could result in long-term negative consequences to their physical, mental, and emotional development through exposure to trauma. They asserted that they had a track record of meeting the Boys’ needs. The Boys have developed a secure attachment to them, and a positive attachment to the daughter, and extended family.

22The Applicants held that they were a cultural and linguistic match to the birth family. The Applicants demonstrated a willingness and capacity to support openness with the Other Family, the Boys’ birth mother, and paternal relatives. The Boys are at the beginning stage of developing a relationship with their half-sisters.

23The Applicants argued that it is in the Boys’ best interest to remain in the only home they have ever known with the only caregivers they have ever known. There is no good reason to risk potential developmental trauma to the Boys to place them with their half-sisters.

The Respondent’s Position

24The Respondent provided the following reasons in support of its position that it was in the Boys’ best interests to be placed with the Other Family. The half-sisters’ family was considered a kin family as the Boys’ siblings lived in the home. The Respondent suggested that the Panel focus primarily on two issues: continuity of care and the benefit to the Boys of living and being raised with siblings in a true cultural and linguistic match.

25In their communication with the Applicants, in their decision-making, and at the hearing, Respondent staff (Service Manager, Child Protection Worker) argued that maintaining sibling relationships outlined in item v in section 179(2) should be afforded greater weight than the remaining factors in the best interests test. This argument was also included in a Contact Log presented to the Panel (Exhibit 6). The Respondent also argued that the law required the Respondent to place greater weight on putting the sibling unit together than on the remaining factors such as continuity of care.

26It is the Respondent’s policy/core belief/practice that siblings should be placed together whenever possible as this would afford the Boys with a link to their roots, their identity, their history, and a sense of self within a family. The Boys’ history of positive attachments with the Applicants is a protective factor in relation to any trauma the Boys might face as a result of the disruption in their placement. The effects of disruption can be mitigated by sound clinical practices, especially given the Boys’ history of positive attachment, their young age, and the fact that they have been exposed to the Other Family and their half-sisters.

27The Respondent asserted that the Other Family was a true cultural and linguistic match for the Boys. The Other Family plans to maintain connections between the Boys and the Applicants. The Respondent also believes that families in the Society’s foster system should not consider this a path to adoption as the Respondent does not have dual adoption/foster homes except in certain circumstances.

28Finally, the Respondent indicated that the Boys’ biological mother expressed her preference for the Boys to be placed with their sisters.

ANALYSIS

29In any application under s. 192 of the Act, the CFSRB must determine if the Respondent’s decision to refuse the Applicant’s application to adopt the Child is in the Child’s best interest.

30The Divisional Court in Family Youth & Child Services of Muskoka v DM and CM, 2010 ONSC 6018, established the test that the CFSRB must apply in the review of an adoption refusal. This decision provides a detailed analysis of the CFSRB’s mandate when making a decision in the best interests of a child. The CFSRB must make a determination and a substantive decision as to what specific action is in fact in the best interests of the child. If the decision under review is a refusal of an adoption application, the specific action relates to the distinct steps in the entire adoption application process. Although action must be interpreted in the context of the specific decision under review, which in this instance is a refusal of an adoption application, the legislation gives the CFSRB broad authority to determine what should be done in the child’s best interests within the confines of the decision/action under review.

31In a recent decision (JE and KE v. Children’s Aid Society of the Niagara Region, 2020 ONSC 4239) which overturned a CFSRB placement decision, the Divisional Court provided additional guidance to the CFSRB related to the best interests of the child test. This included directing the CFSRB to consider the totality of the evidence before it and to provide intelligible, justifiable, and transparent reasons. The Court decision indicated that:

• The CFSRB has a duty to consider the views and wishes of the child;

• The weight given to the child’s wishes depends on the child’s age and maturity;

• The CFSRB has a duty to assess the adverse effects and benefits a child may experience from living with half-siblings, including an examination of the foster sibling relationship;

• The CFSRB has a duty to assess openness, and provide reasons for preferring one openness plan over another;

• The CFSRB should not engage in the use of “reverse reasoning” in its analysis of continuity of care by focusing on whether a child could overcome the trauma of being uprooted from a family, rather than focusing on whether there is sufficient reason to impose this trauma and disruption upon a child in the first place; and

• The CFSRB’s reasoning related to the integration of the Legislature’s intention, and the application of the best interests test should be stated clearly, including commenting on which factors outweighed other factors.

32In the case before it, the Panel assessed the evidence based on the criteria in the Act outlined in paragraph 8 above and considered the jurisprudential guidance offered by the Divisional Court. While each of the criteria has been assessed, the Panel found that the decision of what action is in the best interests of the Boys turned on the following 3 factors outlined in 179(2)(c):

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

(v) 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; and

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

Procedural Issues

33The Panel addressed three procedural issues: quality of interpretation at the request of the Respondent, qualification of Dr. Horvath as an expert witness, and disclosure of an e-mail from the Boy’s biological mother.

Interpretation

34The CFSRB provided French/English interpretation for three of the Society’s witnesses. Partway through the testimony of the first Francophone witness, Counsel jointly raised concerns about the competence of the interpreter. The Panel agreed, and the interpreter was relieved.

35At the request of the Respondent, the first Francophone witness completed her testimony in English. She was given an opportunity to repeat or clarify any aspect of the testimony already given in French. Counsel indicated that there was no need to review the earlier testimony as interpretation concerns were identified and addressed as they arose.

36A second interpreter became ill at the beginning of the next day of hearing and did not provide any interpretation services. There were no issues with the third interpreter who provided services during the testimony of two other Respondent witnesses.

Qualification of Expert Witness

37The Applicants wished to introduce a report (Exhibit 47) and expert testimony by Dr. Catherine Horvath.

38The Applicants proposed that Dr. Horvath be considered an expert witness in the following: attachment and the impact of disruption on attachment in the context of child welfare and adoption, and on issues related to the consequences (benefits and costs) of a disruption in attachment in order to build or maintain sibling relationships.

39The Respondent agreed that Dr. Horvath should be qualified as an expert in attachment and disruption in the context of child welfare and adoption; however, the Respondent argued that she was not an expert on sibling relationships and the benefits of children residing together.

40Dr. Horvath has a PhD in clinical psychology from the University of Ottawa. She is a registered psychologist in Ontario with competences in clinical work with children, adolescents, and families, and forensic work with adolescents. She is the Founder and Executive Director of the Ottawa Centre for Resilience which provides training and consultation services to individuals and organizations in the Ottawa area, including the Respondent. She has expertise and has made several presentations on the issue of trauma. (Dr. Horvath’s CV, Exhibit 44)

41The Panel qualified Dr. Horvath as an expert on attachment, the impact of disruption in the context of child welfare and adoption, as well as on the importance of sibling relationships. The latter finding was based on Dr. Horvath’s training and active practice as a clinical psychologist which qualified her to give expert opinion on the importance of sibling relationships.

Disclosure from the Biological Mother

42On the last day of Respondent evidence, the Society’s Counsel reported that the Boy’s mother had provided the CFSRB with an e-mail containing her preferences for the placement of the Boys. The Respondent requested that the Panel enter this evidence into the record. The Applicant’s Counsel argued that the e-mail was not admissible as no context was provided as to who sent it and why.

43The Panel ruled that the e-mail was not admissible given concerns related to the origins of the e-mail. The Panel questioned why the biological mother would send an e-mail to the CFSRB with her placement preferences on the day that the Respondent was wrapping-up its case when she was not supposed to know that adoption proceedings were taking place given that she was not a party to the proceedings. No context was provided to the Panel regarding the origins of the e-mail and why it was sent. In addition, the Panel found that the biological mother was not called as a witness and therefore it would be a prejudice to the Applicants not to be able to cross-examine her on her e-mail. Finally, the Panel found that the wishes of the biological mother do not fall within the best interests test in section 179(2), and therefore, were irrelevant to its decision-making in the hearing. The Panel found that the e-mail had little relevance and should be excluded from the record.

Areas of Agreement

44Both parties agreed that there were no concerns with the ability of either family to care for the Boys and that both families are adequately prepared to care for the boys. The Applicants have provided excellent care to the Boys and the Boys have attached and formed a positive bond with the Applicants. The Boys do not have First Nations, Inuit, or Metis identity. They are Caucasian and are bi-cultural Anglophone and Francophone Canadian. The Boys are currently meeting their developmental milestones.

45Both families are committed to openness between the Boys and their siblings and biological mother. The in-person and Skype visits between the families have been positive and the families have gotten along well.

The Child’s Views and Wishes (Section 179(2)(a))

46The Panel had no independent evidence before it on this criterion. The Boys did not have representation from the Office of the Children’s Lawyer. Given the direction by the Divisional Court in JE and KE v. Children’s Aid Society of the Niagara Region, 2020 ONSC 4239, the Panel considered the evidence before it regarding the Boys’ wishes.

47The Applicants argued that the Boys have known no other family and are attached to the Applicants and their daughter. The Boys seek comfort from the Applicants. While the Applicant’s Counsel acknowledged that the CFSRB was likely to give the Boys’ wishes limited weight based on their age and maturity, Counsel argued that the Boys’ perception of home and family are clear in terms of with whom they wished to reside.

48The Respondent argued that the Boys could not express their views due to their young age. In her testimony, the Adoption Worker indicated that the Respondent had experience with adoptees who are now adults returning to the Respondent to ask why they were separated from siblings. This issue was also raised at the Permanency Planning Meeting related to Society’s response to the Boys should they return to the Respondent later on in life and ask why they were not placed with their siblings. The Panel finds that this hypothetical issue raised by the Respondent is not part of the legislated Best Interests clause of the Act.

49The Boys were placed in the Applicants’ home when they were 12 days old. The Relationship between the Applicants and the Boys began at their first visit to the hospital, and LM visited them regularly until they were discharged.

50The Boys demonstrate an attachment to the Applicants. The Boys turn to and are comforted by LM. LL testified that the boys have a strong connection to him and are comforted and soothed when he holds them. They are excited to be greeted by the Applicants’ daughter in the morning. The Boys are familiar with and curious about their neighbourhood. The Boys have adjusted to the Applicants’ daily routine. The Boys also recognize the Applicants’ extended family members.

51The evidence before the Panel confirms that the Boys are developing a relationship with the Other Family based on their level of development (16 months). They have met in person approximately 8 times since January and have Skyped approximately 8-9 times. LM testified that the Boys do not know that they were fostered.

52The Panel finds the nascent relationship between the Boys and the Other Family cannot compare qualitatively and in its intimacy to the relationship that the Boys have with the Applicants with whom they have lived continuously since they were 12 days old, and who have consistently provided them with comfort and safety. In total, the Boys would have spent less than 30 hours (8 in-person visits of approximately 1-2 hours; and 8-9 Skype visits of 30 minutes to 1 hour) with the Other Family, and always in the presence of the Applicants.

53The Panel took direction from PD and DD v. Children’s Aid Society of the District of Thunder Bay, 2019 CFSRB 67 at para 78 which indicated:

“Given the Child's age, level of development and lack of participation in the proceedings, the Panel has looked to objective indicators to shed light on the relationships in her life, the emotional ties they likely represent and their significance as measured by the length of time over which any relationship has existed and the frequency and regularity of the contact with the Child.”

54Based on a review of the totality of the evidence before it, and viewing the evidence from a child-centred position; the Panel finds that the Boys would prefer to remain in the only home that they have known, and with parents with whom they have developed a secure attachment and who have provided them care and comfort since shortly after their birth.

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

55The Applicants indicated that the Boys were exposed to developmental trauma in the prenatal period (intimate partner violence, concerns with pre-natal care, exposure to marijuana and cocaine), as well as the trauma associated with being born prematurely, being born with drugs in their systems, and being separated from their mother at birth.

56The Applicants asserted that they have a track record of meeting the Boys’ physical, mental, and emotional needs and addressing their challenges. The Applicants challenge the premise that the Other Family can meet the Boys’ needs. They argued that the Other Family currently has their hands full parenting three daughters who have experienced developmental trauma; one with special educational needs, and the other who is beginning attachment therapy. Adding twin toddlers to the mix will tax the Other Family’s emotional resources.

57The Respondent maintained that the Other Family has the ability to care for the physical, mental, and emotional needs of the Boys. They have gained significant experience through adopting and supporting their three daughters, all of whom have experienced trauma. This experience will allow the Other Family to meet the short and long-term needs of the Boys. The Respondent contended that the Other Family is better equipped to meet the emotional needs of the Boys as they will provide the Boys with the opportunity to explore their roots and develop a sense of self with their siblings.

58The Panel placed greater weight on the oral and documentary evidence before it related to the Boys’ history of developmental trauma, rather than the opinions of the parties. The Panel had before it evidence attesting to the prenatal and immediate post-natal traumas that the Boys experienced. Dr. Horvath testified that being separated from a parent at birth is a traumatic experience which the Boys will not remember, but which will have lasting effects on their development.

59The Boys do not have any special needs at this point in time (testimony of the Foster Worker and Child Protection Worker). Dr. Horvath did; however, indicate that the sequalae of disrupted attachment may pose developmental risks to children as they age. In addition, an Adoption Referral Case Note (Exhibit 33) identified that staff had to consider delays, FAS (Fetal Alcohol Spectrum Disorder) and attachment issues for the Boys based on their pre-mature birth.

60The Applicants have demonstrated an ability to monitor the Boys’ needs and to put into place plans to mitigate the effects of the developmental trauma on the Boys’ physical, mental, and emotional health. For example, the Applicants were able to quickly identify that MB had torticollis and to involve a physiotherapist to resolve this physical issue. The Boys have met all of their developmental milestones while in the Applicants’ care.

61Dr. Horvath raised the issue of emotional and psychological resources as they related to the Other Family’s ability to meet the Boys’ physical, mental and emotional needs as the caregiving resources may not meet the caregiving demands. She questioned whether the Other Family had the ability to care for twins in addition to their three children.

62The Other Family has demonstrated an ability to identify and skillfully address the emotional and developmental needs of their daughters. The parents are attuned to their needs and have provided and brokered appropriate supports to meet the girls’ needs. They have also planned for the girls’ long-term emotional needs associated with their past trauma and adoption experience.

63Based on a review of the totality of the evidence, the Panel finds that the Applicants have a track record of meeting the twin toddlers’ physical, mental, and emotional needs and in providing appropriate care to meet the needs. While the Other Family has experience in meeting the needs of children who were adopted at a later age (youngest was 2), it would be speculative to conclude that the Other Family has the emotional and psychological resources to integrate two active toddlers into the family unit; especially bearing in mind the ongoing emotional and mental health needs of their three girls and the demands, needs, and routines required to parent two busy toddlers.

64Given the Applicants’ track record of meeting the Boys’ needs and providing exemplary care, the Panel finds that it is in the Boys’ best interests to remain with the Applicants.

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

65The Applicants asserted that the Boys are at a critical stage of development wherein disruptions could result in long-term consequences in their emotional and mental development. While the Boys are meeting their developmental milestones at present, disruptions associated with moving them to the Other Family may compound the trauma that they experienced before and after birth and result in putting their development at risk.

66The Respondent maintained that the safe and secure foster placement has allowed the Boys to meet their developmental milestones. At present the Boys do not have any special needs. The Respondent presented evidence that the Other Family has a diversified experience in dealing with adopted children’s behavioural needs associated with their traumatic past and adoption experience which places them in good stead to meet the Boy’s physical, emotional, and mental needs at home and at school.

67While the Boys are not displaying any developmental delays and effects of their past trauma, the Respondent and Dr. Horvath agreed that the long-term effects of the trauma are unknown at present. An Excerpt of a Conversation between Respondent staff and the Foster Parents (Exhibit 37) indicated that a pediatrician who has observed the Boys has indicated that there would be a possibility that MB be diagnosed with ADHD and anxiety disorder for LB. A traumatic move of the Boys from their current home may aggravate the Boys’ emotions and behaviours.

68Given the uncertainty related to the impact of the trauma the Boys have experienced on their future development, and given the uncertainty related to the potential impact of a disruption in their attachment associated with being placed with the Other Family, the Panel finds that it is in best interests of the Boys’ development that they remain with the Applicants.

(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

69Both families represent an equivalent match for the Boys on all factors in this test with the exception of creed.

70The Respondent argued that the Boys’ identities as Catholics is a relevant factor to be considered. The Other Family is Catholic and intends to raise the Boys in that faith, including sending them to Catholic school. The Panel noted that CPIN Note dated April 6, 2020 (Exhibit 30) indicated the Boys’ parents’ religion had not been identified.

71The Applicants attend a Christian church but were raised in the Catholic faith. They indicated that the Boys’ biological mother has shared with them that she is Catholic and that both she and the biological father are comfortable with the Boys attending the Applicants’ church. (CPIN Note, March 2, 2020).

72The Panel noted that, other than briefly stating their positions, the parties placed little weight on this factor in the best interests analysis. The Boys are being raised in a Christian home and the Applicants are sensitive to the religious practices of the Other Family (e.g. collaborating on what grace is said before meals). The Applicants indicated that they were raised as Catholics, and therefore they would have the knowledge and ability to address any questions the Boys may have related to the Catholic faith practiced by their biological mother and half-sisters.

73For these reasons, the Panel finds that, while the Other Family more closely matches the Boys’ biological mother’s religion (religious practices), the difference is not so significant as to outweigh the other factors in the best interests test.

(iv) The child’s cultural and linguistic heritage

74The Respondents argued that preserving the Boys’ cultural and linguistic heritage as Franco-Ontarians merited significant weight in the best interests analysis. The Respondent indicated that the Other Family was a true cultural match as the Boys’ mother is French Canadian, and their half-sisters are being raised as Franco-Ontarians. The French language and culture are alive in the Other Family’s home. The Respondent argued that to place the Boys permanently with the Applicants only offers the Boys a cultural and linguistic accommodation through continued exposure to French given that the Applicants live 70% in English.

75The Applicants contended that the Respondent misapprehended the linguistic heritage and cultural background of the Boys. The Respondent has completely ignored the Boys’ paternal background which is unilingual Anglophone. The Applicants asserted that they are reflective of the Boys’ ethno-cultural and linguistic makeup in every way. Their home is reflective of the Boys’ linguistic heritage as both parents are fluently bilingual, with the Foster Father having French as his first language and his family communicating with the Boys in French.

76The Applicants indicated that they have endeavoured to raise the Boys primarily in English with exposure to French based on the preferences expressed to them by the biological parents (Exhibit 48). The Applicants are committed to ensuring that the Boys are raised to be bilingual. (Exhibit 21).

77The Foster Worker testified that it was not an expectation of the Respondent that the Boys be exposed to French only in the home but that both languages were to be used as the biological father is anglophone.

78ML testified that French is spoken “pretty much all the time” in the Other Family’s home. The family listens to French music and radio, watches movies in French, and reads in French. The girls have demonstrated a resistance to learning English. For all intents and purposes, the Other Family functions in French and is making some limited efforts to integrate English in its day to day functioning.

79The Child Protection Worker testified that if LL (Applicant Family) was present a bit more French was used in the home. Meetings with the Applicants were conducted mostly in English, although the Worker had observed LM using a little French with the Boys in the home. The Applicants mostly communicated with their daughter in English, although LM testified that she spoke to her daughter exclusively in French for the first two years of her life. The Child Protection Worker testified that the Applicants were asked to expose the Boys to as much French as possible and that she felt that they have done this as the Boys understand some words and simple instructions in French.

80CPIN note dated April 6, 2020 (Exhibit 30) indicated that the Boys were placed in a foster family that is a cultural match to them. The Boys’ biological mother is a bilingual Francophone and their biological father is a unilingual Anglophone.

81While cultural and linguistic issues were raised as significant issues by the Respondent in relation to the best interests analysis at the hearing, the Panel noted that these issues were not afforded the same significance by the Respondent in the placement deliberations. The Child Protection Worker confirmed that the issue of the Boys growing up in a primarily French-speaking home was not discussed in the Permanency Planning Meeting. This was confirmed through a review of the Placement Planning Conference Notes (Exhibit 5), as well as the Video of the Meeting (Exhibit 22) where the Applicant’s culture and language were not raised by Respondent staff as a factor in the best interests analysis and deliberations.

82The evidence before the Panel is that:

• The Boys’ mother is French speaking, and their father and his family is unilingual English;

• The Other Family is predominantly French-speaking and reinforces Franco-Ontarian culture in the home;

• The Kin Children attend bilingual school in French; and have experienced challenges and reticence to learn English;

• The Foster Father is French Canadian and has French as a first language; the Foster Mother is fluently bilingual (as per Federal Government Standards), the Foster Sister attends bilingual school; French is spoken 30% in the home; and the Foster Father’s family engage the Boys in French;

• The Boys have been exposed to French and have demonstrated receptive French skills;

• At no time were concerns related to the level and quality of French spoken in the Applicants’ home raised by Respondent staff; and

• Bilingualism is essential for the boys to communicate with their Anglophone paternal relatives.

83The lack of prior notice of linguistic factors being of concern in the Applicants’ home, the fact that the Respondent did not explicitly identify linguistic and cultural issues in its placement deliberations, the track record and commitment by the Applicants of exposing the Boys to French within the home and through French immersion, and the fact that the Boys’ biological family include a Francophone mother and an Anglophone father, undermined the Respondent’s argument that the Other Family is the only cultural match for the Boys, and that remaining with the Applicants would amount to a cultural and linguistic accommodation.

84The Panel noted that the Respondent’s Counsel raised the importance of preserving Franco-Ontarian culture and that placement with the Other Family will reinforce this culture. This issue was not raised in the placement deliberations and no evidence was presented at the hearing to support this argument.

85The Panel finds that the Applicants are a linguistic and cultural match for the Boys and that they are committed to raising them in a bilingual and bicultural manner. Moving the Boys to a home that is, by all intents and purposes, Francophone, is not in the best interests of the Boys as it does not support and reinforce their bilingual and bicultural identity; and would add undue stress to the transition process.

(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; and (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

86These 2 factors are best analyzed together given that they focus on the concept of the Boys’ attachment to the Applicants, the Other Family, and to the Boys’ extended family members and the community.

87The Applicants contended that attachment should be afforded significant weight in the best interests analysis and should be analyzed from the Boys’ perspective. They argued that the Boys have developed a secure attachment to the Applicants in the only home they have known. The Applicants and their daughter have become the Boys’ psychological family. In addition, the Applicants argued that the Respondent has focused narrowly on the importance of the Boys being raised with their half-sisters. This all or nothing approach lacked a nuanced understanding of family relationships. Finally, the Applicants have an established track record in working to extend the Boys’ connection with their half-siblings, biological mother, and paternal family.

88The Respondent argued that it is in the Boys’ best interests to be raised in the same home as their siblings. This would afford them the opportunity to share experiences, memories, develop a sense of identity and history that can serve to mitigate the effects of parental loss, separation, and trauma. Sibling relationships often are the longest relationships in a person’s life. Siblings should be placed together whenever feasible and only when it is not possible for a joint placement, efforts should be made for siblings to maintain consistent contact and access to one another. The Applicants’ plan of regular and ongoing visits represented an accommodation. Living in the Other Family’s home would allow the Boys to develop a true sibling relationship.

Attachment

89The Panel had before it expert testimony from Dr. Horvath regarding attachment in the form of oral testimony and her Report (Exhibit 47). This testimony was also supplemented by a study disclosed to the Panel entitled Considering the Best Interests of Infants in Foster Care Placed Separately from their Siblings (Exhibit 51). Dr. Horvath’s evidence as well as the Study included the following facts in relation to attachment:

• Attachment is characterized as a dyadic relationship between a young person or child who needs protection and an adult caregiver;

• Achieving closeness and protection from a preferred caregiver is essential for the survival of infants;

• Secure attachment is the by product of a child’s experience of seeking protection and being soothed/comforted by an attachment figure when the child is distressed or in need of protection;

• Secure attachment is established through hundreds or thousands of interactions between a child and caregiver each day and the trust established between the infant and the caregiver;

• Attachment is specific to a child and a particular adult: a child’s attachment to a particular adult cannot be transferred to another caregiver;

• Infants with secure attachments express distress when separated from their caregiver and are able to resolve distress when comforted by their caregiver;

• Between 7- and 9-months infants demonstrate an onset of stranger wariness and separation protest which indicates the emergence of a selective attachment;

• Between 9- and 18-months infants develop a hierarchy of attachment figures with secure base and safe haven behaviours;

• Positive attachment influences brain development and the wiring of connections along neural pathways;

• Attachment affects the body’s stress response system and personal resilience; and,

• Attachment has a significant impact on personality development, emotion regulation, self-concept, emotion understanding, social cognition, conscience, memory, and future positive parent-child interaction and peer relationships.

90The Applicants and their witnesses (affidavits in Exhibits 39-43) and the Annual Review dated January 3, 2020 (Exhibit 11) confirmed strong relationships between the Boys and the Applicants, their extended family, and in the broader community. CPIN Note (Exhibit 8) indicated that the Applicants’ daughter has transitioned to referring to the Boys as her brothers.

91In addition to the testimony provided by the Applicants, the Panel had before it evidence of the existence of a secure attachment between the Boys and the Applicants as caregivers. For example, the Child Protection Worker reported in a Contact Log dated August 23, 2019 (Exhibit 27) that the Boys look for the Foster Mother when they hear her voice, that MB turns around to look for the Foster Mother, and that the Foster Mother has indicated that the Boys have started making strange with new people.

92The Respondent argued that the Boys would be able to form secure attachments with the Other Family after a transition period similar to many foster children who are placed for adoption.

93Dr. Horvath testified that it is possible, but less likely, that the Boys can become attached to a new family. It is possible for children to develop new attachments, especially if they have had healthy attachments initially; however, there are no guarantees. These new attachments may take longer to form and are more likely to be sub-optimal. Multiple disruptions in the Boys’ attachment will lead to increased stress resulting in poor behavioural and mental health outcomes and impacts on their cognitive development. She questioned why someone would take the risk on exposing the Boys to such a risk as there is no turning back once a transition is implemented.

94Dr. Horvath also acknowledged that children with secure attachments are more able to develop other secure attachments; however, it is not correct to argue that attachment can be transferred to another as attachment is dyadic.

95With respect to sibling relationships, in general, research has shown that it is important for siblings to remain together and that keeping siblings together in the child welfare context is a protective factor. Exhibit 51 (Considering the Best Interests of Infants in Foster Care Placed Separately from Their Siblings) noted the paucity of research with children who are initially placed apart from their siblings only to be removed from their primary attachment figures and then placed with siblings with whom they have little or no relationship. It concluded that foster children should be placed with their siblings except when doing so would cause trauma or attachment disruption. Siblings may be vital for maintaining a sense of safety and emotional continuity in an unknown and potentially frightening situation and sibling relationships can be a source of identification and individuation and a reference point go gauge one’s place in a family and the world at large.

96The Panel considered the evidence related to sibling attachment. The Respondents argued that establishing and maintaining the bond between the Boys and their half-sisters should be afforded significant weight in the analysis of factor 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) and factor 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).

97Dr. Horvath testified that sibling relationships can be defined in a psychological rather than biological sense. She testified that the Boys are in the very early stage of developing what she described as an emerging relationship with their half-sisters. While reinforcing sibling relationships is important to the healthy development of a child (especially if the children had a pre-existing relationship), Dr. Horvath indicated that, at their current stage of development, the Boys’ primary need is to develop a secure attachment to a caregiver.

Jurisprudence on Attachment

98The Applicants maintained that Court jurisprudence and previous CFSRB decisions reinforced the fact that the relationship with a parent and membership in a family must be viewed from the child’s perspective.

99In 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.”

100The JE and KE v. Children’s Aid Society of the Niagara Region decision addressed the issue of bonds between foster parents and foster siblings. In this case, the foster child was over 3 years old and had lived with her foster family since shortly after birth. The Applicants asserted that the age of the children does not distinguish the present case from JE and KE. The Boys are at an age where primary attachment is crucial. The Boys have met their half-siblings and are developing an emerging relationship based on the extent of contact and the Boys’ age.

101The Respondent maintained that the Boys’ situation is differentiated from that of JE and KE given that the child in the decision had been in the same home for more than 3 years which is longer than the Boys; the child never met her siblings or the adoptive parents and did not know about them; and had not developed a relationship with the identified family.

102The Panel finds that the situation of the Boys is similar to the JE and KE decision given that they had lived with the Applicants since shortly after their birth and given that they are in the preliminary stages of forming a relationship with their half-sisters’ family.

103The Respondent also argued that the Panel should adopt the reasoning in CO v. Children’s Aid Society of Ottawa, 2020 CFSRB 27 in which the CFSRB ordered moving a child from a foster home to a kin home to be placed with his sibling. In this decision, the CFSRB found that the child’s attachment could be transferred to new caregivers.

104The Panel considered the arguments and found that the CO decision could be differentiated from the current matter for the following reasons. Firstly, the kin link was the adoptive father and not the half-sisters as in the present situation. Secondly, the CO decision involved a child with indigenous heritage. The Act is clear that the panel must consider the importance of First Nations, Inuit and Metis cultures, heritages and traditions, of preserving the child’s cultural identify and connection to community in the best interests analysis. This consideration is not a factor in the case before the Panel. Thirdly, no expert witnesses or case law was presented in support of the Applicant’s position which is not the case with the current application. Fourthly, the Boys have been placed each with each other which was not the case in the CO decision. Fifthly, the Boys have experienced pre- and peri-natal trauma which was not a factor in the CO decision. Finally, the Panel considered other weaknesses in the CO’s case including the fact that the Applicant was a single parent, had significant health issues, had near precarious finances, and had a limited support network.

105For the reasons cited above, the Panel finds that the case before it is distinguished from the reasoning in the CO v. Children’s Aid Society of Ottawa decision. As such, the Panel did not place great weight on the attachment and disruption findings as they applied to this case.

106The Respondent cited the DC-G and MG v. Children’s Aid Society of the Niagara Region, 2020 CFSRB 25 decision in support of its arguments on sibling connections. The Panel assigned little weight to this decision given that the Divisional Court in (JE and KE v. Children’s Aid Society of the Niagara Region, 2020 ONSC 4239) found the decision to be unreasonable.

107The finding of the CFSRB in J.G. & A.G. v. Windsor Essex CAS (CFSA s.144), 2009 CFSRB 42, at paragraph 40, underlined that except where there are overriding considerations which militate against the adoption placement, it is preferable to give biological siblings an opportunity to grow up together:

“In this case, the Board is satisfied that since the individual needs of S.B. can best be met by the Applicants and she has the ability to transfer attachment, there is no basis to keep S.B. apart from her sister. The fact that the sisters may not have had a pre-existing relationship does not mean that S.B. should not be given the opportunity to develop and grow together with C. as sisters, with a link through their birth mother. This link will serve to positively foster S.B.’s sense of belonging and provide her with a substantive life long sibling relationship.”

108The Panel preferred the more recent approach taken in JT and CT v. Windsor-Essex Children’s Aid Society, 2020 CFSRB 9 at paragraph 109 held that:

“The Child’s community is broader than her biological half-siblings. The Applicants’ two young daughters are not biologically related to the Child. Nonetheless they form a significant part of her community to whom she has substantial emotional ties. She identifies KT and AT as her sisters as evidenced by an interaction JT described during one of StG’s visits to the Applicants’ home. StG started telling KT what the girls were going to do “in a forceful manner”. The Child said, “don’t talk to my sister that way”.”

Findings on Attachment

109The Panel finds that the oral and documentary evidence before it established that the Boys have developed a secure attachment to the Applicants; and have established connections between the Applicants’ daughter, extended family, and community.

110The Respondents argued that Dr. Horvath’s evidence was speculative and general in nature. The Panel finds that the Respondents cannot fault Dr. Horvath for providing speculative commentary based on research which did not reflect the Boys actual circumstances when she was not provided access to the Boys and when the Respondent was unable to provide any research that reflected the actual circumstances of the Boys (children who had never lived with siblings).

111Dr. Horvath was provided with a Statement of Agreed Facts (Exhibit 45) to frame her report. The Statement provided an overview of the Boys’ child welfare history, the existence of the half-sisters, the interest of both families in adopting the Boys, the Respondent’s view that there are no concerns with either family or their adoption plans, the history of sibling visits; the families’ commitment to openness, and the Respondent’s decision following the Permanency Planning Meeting.

112The Panel found Dr. Horvath’s expert evidence to be persuasive in relation to the weight placed on the Boys’ connection to the Applicants. The Boys are approximately 16 months old. This places them in a developmental window during which a disruption in attachment may result in long-term emotional, mental, and developmental sequelae. While the Panel acknowledges the Respondent’s argument that many children make successful transitions from foster families to adoptive families, it has not been provided with sufficient credible or trustworthy evidence by the Respondent to refute Dr. HHorHorvath’s evidence and the Applicant’s argument that moving the Boys may cause them irreparable harm.

113The Panel considered the Respondent’s arguments regarding the benefits to the Boys of being raised in the same home as their half-siblings. The Panel concurs that being raised in a home with siblings is often desirable; however, this factor is only one in a series of factors to be considered and weighed against each other in the best interests analysis and which could result in not placing the Boys with their half-sisters.

114The Panel noted that the Respondent did not provide any specialized evidence or research which reflected the Boys’ particular situation: foster children who had not previously lived with half-siblings and who have lived their entire lives with foster parents being adopted by families of half-siblings. The Panel noted the paucity of research on the impact of disrupted attachment of toddlers who have lived all their lives with foster families being adopted by families of half-siblings. As a result, the Panel finds the Respondent’s evidence in support of placing the boys with siblings was speculative and did not reflect the Boys’ actual circumstances and possible risks associated with attachment disruption.

115The Service Manager testified that a 2012 review of youth in care (not provided to the Panel and not entered as an exhibit) recommended that sibling relationships be maintained and that child welfare agencies have a responsibility to reunite and offer an opportunity for siblings to be raised together.

116While the value of fostering and maintaining sibling connections is undisputed, the Panel finds that the Boy’s situation related to their half-sisters is unique. The Boys have been placed as siblings in the Applicants’ home. The Boys are part of an existing sibling unit that shares the same pre-natal and post-natal trauma. The Boys share the same biological parents and history of being apprehended shortly after birth and being placed within the Applicants. The trauma that the Boys have experienced having been apprehended shortly after birth is different than the trauma experienced by their half-siblings who were exposed to trauma in the years that they lived with their biological parents and while in foster care. The Boys’ history is inherently different from the histories of their sisters, despite sharing the same mother, in that they have experienced one, stable, and supportive home since their birth and have established secure attachments to the Applicants.

117The Panel finds that the Boys’ experiences and history are different than their half-siblings. These differences have to be considered in assessing the benefits and costs of disrupting the Boys in order to place them with their half-sisters. The Panel finds that the costs and risks associated with disrupting the Boys’ attachments to the Applicants, the Foster Sister, and the extended family and community far outweigh any benefits of the boys being raised with half-siblings with whom they do not share a common history and experience other than through a biological connection.

118The Panel also finds that the nature of the Boys’ sibling relationship to the Applicants’ daughter and to their half-sisters is substantially different. The Boys have lived with the Applicants’ daughter for their whole life and view her as their sister. The Panel finds that the Boys have had limited contact with the Other Family (9 in-person visits, and 8 or 9 Skype visits) which began on February 2, 2020 amounting to less than 30 hours of contact since the boys were approximately 10 months old. As such, the Panel finds that the sibling relationship which is most impactful on the Boys’ is with the Applicants’ daughter.

119The Respondent argued that Dr. Horvath could not certify that the boys will suffer adverse emotional harm if moved. In addition, the Respondent contended that Dr. Horvath was not able to conclude how the boys would be impacted if they were not able to live with their sisters. The Panel found that these arguments were precisely what the Divisional Court in JE and KE v. Children’s Aid Society of the Niagara Region, 2020 ONSC 4239 at paragraphs 88-99 cautioned against in relation to “reverse reasoning”.

120The Panel concurred with the findings in AC v Simcoe Muskoka Child, Youth, and Family Services, 2019 CFSRB 16 at paragraphs 63-66 that a child can still develop a relationship with a half sibling without taking her away from the only family they have ever known. In addition, the Panel placed considerable weight on the direction provided by the Divisional Court in JE and KE v. Children’s Aid Society of the Niagara Region which concluded that: “There was no overriding reason to put the child at risk of trauma by moving her to a new home and there was no care-based reason to do so.”

121The Panel noted that the Applicants have made efforts to establish and maintain links and connections between the Boys and their half-sisters, their biological mother, and paternal extended family. There is no evidence before it that the Applicants would discontinue these efforts should the Boys be placed permanently with them. In addition, as noted in the Openness Section below, some concern was expressed with the Other Family’s willingness to be proactive in ensuring ongoing links between the girls and their biological mother.

122The Panel also finds that, given their young age and stage of development, and given the limited contact with the Other Family, the Boys have not yet formed a significant attachment with the Other Family. The nature of their attachment to the Other Family cannot compare to the attachment to the Applicants and their daughter in whose home they have lived for over 15 months.

123For the reasons cited above, the Panel finds that it is not in the Boys’ best interests to have their relationships and emotional ties to the Applicants, their daughter and extended family, and community disrupted by placing them with their half-sisters.

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

124The Panel’s analysis of continuity in care focused on the evidence presented on the impact of a disruption in continuity of care for the Boys as well as the jurisprudence regarding this issue.

125The Applicants argued that this factor deserved the most weight in the best interests analysis. Disrupting the Boys’ primary attachment comes with risks associated with the loss and trauma the Boys will experience as a result of the move. It will be difficult to ascertain and mitigate the possible effects of a break in the continuity of care.

126The Applicants stated that the Society’s plan is predicated on its belief that foster children regularly transition from foster placement to adoption and establish secure relationships. The Applicants asserted that the Respondent failed to consider the expert evidence on trauma and disruption of attachment provided to them by the Applicants before and during their placement deliberations.

127The Respondent argued that the effects of the disruption in care can be mitigated by sound clinical practices aimed at transitioning the Boys to adoption. The transition should go well as the Boys are young, healthy, and have reaped the benefits of good nurturing and attachment. The transition can build on the existing connections between the Boys and the Other Family established through introductory visits and Skype calls.

128The Respondent argued that children are able to attach to new adoptive caregivers after foster placements. Most children consolidate attachments to new caregivers within a few months. If this were not the case, children in care would never be transitioned from foster to adoptive homes and attain permanency. The trauma the Boys have experienced is no different from other children who have formed successful secure attachments.

129It was the Respondent’s position and the testimony of the Adoption Worker that the Boys would adapt to their new placement after a brief period of transition of approximately 5 – 10 days depending on the Boys’ response. In addition, she testified that it is easier for children to integrate into a family when they are young, up until the age of 4.

Impacts of Disrupted Attachment

130The Panel noted that the Respondent’s position that the Boys could transition to the Other Family’s home within a short period of time and given that they are under 4 is not supported by the expert testimony by Dr. Horvath and in the literature presented at the hearing (Considering the Best Interests of Infants in Foster Care Placed Separately from their Siblings - Exhibit 51) especially when bearing in mind the Boys’ age and particular stage of development.

131Considering the Best Interests of Infants in Foster Care Placed Separately from their Siblings confirmed that children over one year of age take longer than 2 months to develop a consistent pattern of responding to their caregivers (Exhibit 51).

132The Applicants depended on the evidence and oral testimony of Dr. Horvath who was found to be an expert in attachment and the impact of disruption on attachment in the context of child welfare and adoption, and on the importance of sibling relationships. Dr. Horvath testified that the Boys are at a developmental stage where their primary attachment is crucial, and any disruption has the potential to cause trauma. In the first 6-8 months of life, infants do not have selective attachments and can be soothed by other people. After 8 months of age, infants reach a stage in their cognitive development where attachments get locked down. After this point, an infant cannot respond to a new caregiver in the same way. It is possible that a child could establish a secure attachment with a caregiver after 8-9 months of age; however, this is dependent on a variety of risk factors, including the number of traumatic events a child has experienced.

133Dr. Horvath testified that the Boys have already experienced disruptions and traumas associated with separation from their biological mother, their pre-term birth, and their exposure to cocaine. Dr. Horvath gave evidence that children apprehended at birth such as the Boys may not have conscious memories of the disruption in the relationship, but they are born wired to connect to their biological mother’s body through the mother’s heartbeat, breath, and scent. Separating an infant from the birth mother can result in altered stress responses. She indicated that the Boys’ exposure to cocaine, sub-optimal prenatal care, pre-natal stresses associated with domestic violence, premature birth, being a twin, separation from their birth mother, and need for medical interventions after birth have led to developmental trauma in the Boys.

134Disrupted attachment can lead to trauma for a child resulting in an overload in the stress response system. The disruption can result in hyperarousal (crying, inability to be soothed, sense of fear, startle response, easy upset) or withdrawal which is can present as a lack of reaction or response, not crying.

Continuity of Care Jurisprudence

135The Applicants argued that the Divisional Court’s reasoning related to continuity of care in JE and KE. Children’s Aid Society of the Niagara Region, 2020 ONSC 4239 should be adopted in this case. The Panel placed significant weight on the direction provided to the CFSRB in this recent decision which at paragraph 91 found that:

“In JC and KC v. The Children’s Aid Society of London and Middlesex, 2019 CFSRB 12, the Board accepted the testimony from Dr. Milton Blake even though Dr. Blake had not met any of the parties or the child who was the subject of the proceeding. According to the Board, Dr. Blake’s testimony “confirmed the prevailing view that to remove a child who is emotionally attached to a family after a certain point is likely to set the child back emotionally to a significant degree…Disruption to [the Child’s] attachment relationships at this stage could induce trauma like symptoms that will have an immediate effect on [the Child’s] well-being”.

136The Divisional Court went on in Paragraph 85 to find that the CFSRB failed to provide reasons to justify its placing of more weight on one factor over the continuity of care factor. It found that: “On the evidence, there was little to support interfering with what was, by all accounts in the evidence, a hugely successful lengthy foster parent placement where, from the outset, the approved foster parents had indicated a desire to adopt the Child”.

137The Panel also considered the Divisional Court’s analysis in JE and KE related to continuity of care. At paragraph 80, it found that the panel’s findings were unreasonable:

“The Board’s use of “reverse reasoning” by focusing on whether the Child could survive or overcome the trauma of being uprooted from her family, rather than focusing on whether there was sufficient reason to impose this trauma and disruption upon her in the first place.”

138The Panel also noted previous CFSRB decisions that are in line with the Divisional Court’s direction. For example, AC v Simcoe Muskoka Child, Youth and Family Services, 2019 CFSRB 16 at paragraph 65 comments on the importance of continuity of care vs. placement with biological siblings:

“In assessing continuity of care individual circumstances must be considered. While placement with biological siblings could be beneficial in many cases, the Child does not have an established history with the half-sibling in this case. Their contact is only beginning. However the Child has been placed in the same home since birth and has established an identity with the Applicant, her family and her community. While the Child does show signs of being able to form attachments, it would not be in the Child’s best interest to be uprooted from this home unnecessarily. The Applicant knows and understands the Child’s needs and has demonstrated exceptional care in all areas. She would like to provide care on a continuous basis as an adoptive parent. Overall, the Panel believes the Applicant offers continuity for the Child.”

139The Respondent argued that the case is distinguishable from the current case at bar.

Continuity of Care Findings

140It is undisputed that the Applicants and their daughter are the only family that the Boys have known and that the Boys have established secure attachments to the Applicants.

141The Panel noted that continuity of care and attachment issues were not at the forefront in the Respondent staff’s discussions at the Permanency Planning Meeting. While the Service Manager testified that the Respondent always bears in mind considerations of continuity of care and attachment in their decision-making, the Child Protection Worker noted that there was no discussion or consideration of the possibility of the Boys remaining with the Applicants with meaningful contact with their half-siblings at the Permanency Planning Meeting.

142A review of the notes from the Permanency Planning meeting (Exhibit 5) indicated that the vast majority of the deliberations focused on issues such as: maintaining siblings together as a priority, what the Respondent would say to the Boys if they returned and complained that they were not placed with their sisters, the biological mother’s wishes for the children, transition plans for the Boys and the requirement to support families through the decision, more than on the issue of continuity of care and the potential trauma that the Boys might experience if moved.

143The Panel finds that this decision turned on the issue of continuity of care for several reasons.

144The Panel placed significant weight on the testimony, Dr. Horvath’s Report (Exhibit 47), and the Considering the Best Interests study (Exhibit 51) in support of maintaining continuity of care. The Respondent provided anecdotal reports, oral testimony of staff experience, and studies that were not analogous to the Boys’ situation to support their position. As such, the Panel preferred the Applicant’s evidence over that of the Respondent as it related to the importance of maintaining continuity of care and the potential negative impact on the Boys’ development of a disruption in the continuity of care.

145The Panel had before it evidence that the Boys experienced trauma in the prenatal period (exposure to drugs, exposure to domestic violence, questionable pre-natal care), have had a traumatic birth (pre-mature birth, low birth weight, being born exposed to marijuana and cocaine, being subject to medical interventions such as feeding tubes and treatment for Hepatitis B); and were separated from their parents shortly after their birth. These traumas have an effect on their physical, mental, and emotional development. While the Boys appear to be meeting their developmental milestones at present, and no effects of their exposure to drugs has been noted as of yet, the Panel is not prepared to find that a disruption in their attachment would not be associated with some risks.

146The Panel carefully considered the concept of the least disruptive course of action in the Act. It notes that section 81 (2)(c) of the Act limits the authority of a justice of the peace to issue a warrant to apprehend a child if a less restrictive course of action is not available or will not protect the child adequately. The Panel finds that a similar approach is applicable to the case at bar. The Boys should only be moved from their current placement based on the most compelling reasons. Given the potential risks associated with disrupting the Boys’ attachment at their current level of development, given their history of past trauma, and given the commitment to openness on the part of both parties, the Panel finds that removing the Boys from whom they consider as their mother and father is the least restrictive course of action.

147The Panel considered the Boys’ half-sisters in relation to the concept of continuity of care. In this case, the Boys have just become aware of the existence of their half-sisters. There has been no pre-existing relationship and shared life history between the half-siblings that could act as stabilizing or mitigating factors for the Boys’ transition into the Other Family. Thus, the Panel finds that the existence of half-siblings would have minimal impact on the Boys’ immediate transition and the possible future trauma they might face as a result of the transition.

148The Panel finds that, while the Other Family has had success dealing with the trauma experienced by the half-siblings and their transition to an adoptive home, in the half-sisters’ case, there was no other option than to place them in the adoptive home. In the Boys’ case, there is a viable and acceptable option: leaving them in the home where they have attached with a family and where they have thrived despite their challenging beginnings.

149Furthermore, the Respondent did not provide any expert evidence to contradict Dr. Horvath’s testimony and report. The Respondent placed more importance on sibling relationships than on continuity of care. The Respondent’s position is not in keeping with two decisions (JT and CT v. Windsor-Essex Children’s Aid Society, 2020 CFSRB 9 at para 118; and AC v. Simcoe Muskoka Child Youth and Family Services, 2019 para 63-66) which favoured continuity of care when disruption could cause trauma.

150Finally, the Panel placed significant weight on the direction provided to the CFSRB in the recent Divisional Court Decision of JE and KE v. Children’s Aid Society of the Niagara Region at paragraph 99 which indicated: “To disrupt the placement is to subject the child to an experiment or gamble as to whether or not the child would survive unscathed the monumental uprooting and disruption of the child’s entire life for no good reason”.

151Given the evidence on the potential risks to the Boys of disrupting their placement, given the Boys’ history of trauma and their current stage of development, given the direction to the CFSRB in the Divisional Court Decision, and given the jurisprudence cited in the paragraph above, the Panel finds that it is in the best interests of the Boys to maintain their continuity of care and to minimize any disruption on that continuity. The benefits of ensuring the continuity of care for the Boys to their physical, mental, and emotional development far outweighs any benefits of placing the Boys with their half-sisters. The Panel is also unwilling to assume the long-term risks associated with disrupting the Boys’ current attachments to their Applicants.

152As such, the Panel finds that the Boys should not be moved from their current placement.

(viii) The Effects on the Child of Delay in the Disposition of the Case

153The Panel finds that there will be no negative impact related to delay in the disposition of the case as the Boys will continue to be placed with the Applicants. The Panel does; however, encourage the Respondent to complete the necessary requirements to finalize the adoption as soon as possible in order to achieve finality for both parties.

ADOPTION PLANNING

154The Panel noted that it had conflicting evidence before it regarding whether or not the Respondent considered two adoption plans for the Boys. The Service Manager testified that there was no reason for the Respondent to consider the Applicant’s plan as the Respondent had received a kin-plan which was deemed acceptable. The Respondent did not have a duty to consider non-kin plans once a kin plan was approved. The Child Protection Worker testified that two plans were under consideration by the Society. A Contact Log from the Foster Worker (Exhibit 9) indicated that there was internal discussion/debate over whether or not the Applicants’ permanency plan was to be considered by the Society.

155The Panel noted that there were in fact two kin plans, one placing each of the Boys with his brother: and the other placing both Boys with their half-sisters. This situation was a source of confusion and anxiety for the Applicants as evidenced in visit notes between the Foster Worker and the Applicants dated March 2, 2020 (Exhibit 21) as they felt that the decision to place the Boys with the Other Family had already been made (Exhibit 25). LM also testified that the Respondent had already made its mind up before the Permanency Planning Meeting. She indicated that the assessment of prospective adoptive parents is not identical to the assessment of foster parents. While both processes share some commonalities, prospective adoptive parents are screened regarding their financial resources and the ability to provide for the children in the absence of a financial stipend from the Respondent. This analysis was not performed for the Applicants.

OPENNESS RECOMMENDATION

156The Panel had before it uncontested evidence of the willingness of both families to engage in and support openness between each other and between the Boys and their maternal and paternal birth families. The Applicants have proactively sought to establish and maintain contact between the Boys and their half-sisters. The have also reached out to the Boys’ biological mother and biological aunt and grandfather.

157The Panel wishes to highlight some concerns with ML’s testimony regarding openness. She reported at the Permanency Planning Meeting that the girls do not enjoy the back and forth of visiting the boys and that this process was stressful for them. She indicated that she would do her best to address the challenges and maintain the link between the half-siblings. The Panel noted that the ML also testified that the girls could meet their biological mother after they were 18 years of age. These statements raise some concerns regarding the Other Family’s ability to commit to openness with the Boys; however, the Panel is taking the Other Family at its word that it is committed to frequent and ongoing contact between the Boys and their half-sisters.

158Despite the concerns, the Panel is persuaded that both families remain committed to openness irrespective of the Panel’s decision.

DECISION

159Having heard the evidence and considered the submissions of the parties, the CFSRB has decided it is in the best interests of LB and MB to rescind the Respondent’s decision to refuse the Applicants’ application to adopt LB and MB.

ORDER

160The Respondent’s decision to refuse the Applicant’s application to adopt LB and MB is rescinded.

161The Respondent shall place LB and MB on adoption probation with the Applicants and take all necessary steps to complete the adoption process.

CONFIDENTIALITY ORDER

162Pursuant 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.