RI and GI v Brant Family and Children’s Services, 2021 CFSRB 81

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

RI and GI Applicants

-and-

Brant Family and Children’s Services Respondent

INTERIM DECISION

Adjudicators: T. Michele O’Connor; Silvia Novak; Daniel McSweeney Date: November 23, 2021 Citation: 2021 CFSRB 81 Indexed As: RI & GI v Brant Family and Children’s Services (CYFSA s.109)

APPEARANCES

R.I., Applicant Self-Represented

Brant Family and Children’s Services Mira Pilch, Counsel

S.L., Child Kathryn Junger, Office of the Children’s Lawyer (OCL)

INTRODUCTION AND BACKGROUND

1This is an Application filed with the Child and Family Services Review Board (“CFSRB”) under section 109 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1 (the “Act”) regarding the removal of a child from a foster home.

2The Child (“S.L.”) is seventeen years old. S.L. has an acquired brain injury which has resulted in intellectual and physical limitations. She has resided with the Applicants since age 4. On August 20, 2021, the Respondent completed a child welfare investigation subsequent to an incident of adult conflict in the presence of S.L.. The Respondent verified concerns that S.L. is likely to be emotionally harmed resulting from the caregivers’ actions or inactions and/or inadequate response; and that S.L. has been exposed to adult conflict.

3The Applicants’ foster home was closed on August 25, 2021. The Applicants received notice of the removal of S.L. from their care on August 25, 2021, pursuant to s. 109(7) and s. 109(17) of the Act.

4S.L. is currently living in a hotel room in her home community with 24-hour support.

5In a Case Management Conference held on October 6, 2021, the Respondent undertook not to move or relocate S.L. from her current placement until the hearing has concluded and a decision has been released, unless the Applicants and the Child consent. This undertaking was confirmed as a direction in the Case Management Report dated October 7, 2021.

6On October 28, 2021, the Applicant requested an adjournment of the hearing as a medical accommodation. At the second day of hearing on November 3, 2021, the Board approved the request and moved the existing hearing dates (November 3, 5, 9, 10, and 12) to December 3, 8, 10, 13, and 16, 2021.

7During the second day of hearings on this matter (November 3, 2021), the Respondent raised the planned relocation of S.L. to a group home some 130 kms from her present location. A bed had become available and the facility could not hold the bed beyond November 19, 2021. The OCL opposed any relocation of SL and asserted that S.L. opposed the potential move as well.

8A motion hearing was set for November 19, 2021. The Board focused the hearing on: “whether there is sufficient necessity demonstrated by the Society to support SL’s move from her current placement to a different placement prior to the completion of the hearing and the release of the decision on the merits of the Applicant’s request for a review of SL’s removal from their care”.

9The Respondent submitted its Notice of Motion which sought the following relief:

1. A finding that the CFSRB has no jurisdiction over the placement of S.L. prior to the hearing of the Application.
2. In the alternative, an order allowing the Society to move S.L. to the Cedar Heights residence forthwith.

10The OCL provided a Notice of Cross-Motion which included the following:

1. An order seeking to adjourn the Motion brought by the Society, returnable on November 19, 2021, pending the outcome of the final hearing in this matter, or alternatively, seeking to adjourn the Society Motion to a date that coincides with a Motion the OCL wishes to bring, seeking the interim return of S.L. to the Applicant’s foster home.
2. An order granting the OCL permission to set a date to argue a Motion with respect to S.L.’s interim placement being returned to the Applicant’s foster home.
3. Such further and other relief as may be appropriate.

11A Motion Hearing was held on November 19, 2021, where all parties presented evidence, submissions, and jurisprudence on the motion.

12With respect to the issue of Jurisdiction, the Respondent argued that s. 109 of the Act does not provide the Board with the jurisdiction to make a determination on the placement of a child. This remains the sole responsibility of a society pursuant to section 35(1)(d) of the Act. The Board’s power is limited to the provisions in section 109(15) of the Act – to uphold or rescind a society’s decision regarding the removal of a child from a foster home, based on what actions are in the best interests of the child within the confines of the decision under review (s. 109(17)).

13The Respondent argued that the undertaking agreed to on October 6, 2021 was based on the final hearing date of November 12, 2021 with a release of the Board’s decision by November 22, 2021. Given the change in dates, the fact that the new facility is the only facility with an available bed, and the fact that S.L. will turn 18 in January and could be without a home at the end of the hearing, the Respondent argued that there has been a material change in S.L.’s circumstances that allowed it to put forward a Motion that was inconsistent with the previous direction not to move S.L. until the end of the hearing absent consent.

14The OCL submitted that the issue of the Board’s jurisdiction could not be separated from its previous request to argue a motion that S.L. be returned to the foster home. The OCL argued that the current Motion raised issues of abuse of process and procedural fairness. The OCL argued that the Board has the jurisdiction to order that the placement remain as it is, or to return S.L. to the foster home.

15With regards to S.L.’s best interests, the Respondent argued that the affidavits provided by Respondent staff indicated that the current placement at the hotel is not meeting S.L.’s physical, mental and emotional needs. Her routines have changed significantly; she is not attending school; and she does not have access to a complete kitchen that would allow her to bake. The group home would provide continuity of care and an opportunity for S.L. to develop peer relationships. The Society has committed to maintaining the existing access schedule and will bring S.L. to Brantford for access visits.

16The Applicant argued that S.L.’s wishes are to return to the foster home. He submitted that there will be a significant negative impact on S.L. if she is moved to a group home. This is a contravention of her human and legal rights and her expressed desire to return home. S.L. has clearly expressed that she wants to remain at the hotel until the hearing is concluded. A move is not in S.L.’s best interests.

17The OCL argued that S.L.’s preference is to remain in the hotel. There is little evidence regarding whether the bed will be available at the end of the hearing. The Respondent has failed to examine the impact on S.L. if she is taken to a facility against her will for one month, when it is a possibility that she could be returned to the Applicants’ home at the end of the hearing. S.L. has not been in school since she has been removed so this is not a consideration. The OCL and S.L. have not had the opportunity to visit the prospective placement or to be involved in considering alternative placements. There is conflicting evidence regarding S.L.’s views about the group home; however, it is agreed that S.L. wants to return to the Applicants’ home in the long-term as she sees the Applicants as her family.

THE LAW

18Section 109(15) of the Act states that the:

The Board shall, in accordance with its determination of which action is in the best interests of the child, confirm the proposals to remove the child or direct the society not to carry out the proposed removal, and shall give written decisions for its decision.

Section 16 states:

Subject to subsection (17), the society shall not carry out the proposed removal of the child unless:

a) the time for applying for a review of the proposed removal under subsection (8) has expired and an application is not made; or

b) if an application for a review of the proposed removal is made under subsection (8), the Board has confirmed the proposed removal under subsection (15).

Section (17) states:

A society may remove the child from the foster home before the expiry of the time for applying for a review under subsection (8) or at any time after the application for a review is made if, in the opinion or the local director, there is a risk that the child is likely to suffer harm during the time necessary for a review by the Board.

19The test for the Board when reviewing a decision in an adoption refusal or removal from placement was established by the Divisional Court in Family Youth & Child Services of Muskoka v DM and CM, 2010 ONSC 6018 (Muskoka) which provides a detailed analysis of the CFSRB’s mandate when making a decision in the best interests of a child.

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

20The CFSRB is required to make a substantive decision in the best interests of the child, and in doing so, the Board must consider the over-arching consideration set out in the Preamble and section 1 of the Act and is mandated to take into account any of the specifically enumerated factors that are relevant in section 179(2).

21The CFSRB is specifically required under section 179(2) 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 person considers relevant, including

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

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

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

iv) the child’s cultural and linguistic heritage,

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

vii) the effects on the chid of delay in disposition of the case.

ANALYSIS

CFSRB’s Jurisdiction

22The Panel reviewed the submissions and evidence regarding whether it had the jurisdiction to make an order regarding S.L.’s placement before the end of the hearing.

23While it concurs with the Respondent’s submission that section 109(15) of the Act does not expressly provide the Board with jurisdiction around the placement of a child, the Panel finds that several of the Board’s previous decisions serve as precedents regarding the Board’s jurisdiction to make interim orders related to the placement of foster children and potential adoptive children.

24For example, in L.D. v. Dilico Anishinabek Family Care, 2009 CFSRB 75, at paragraph 4, the Board found that it had the jurisdiction to review the removal of a child from a foster home even when a determination of risk has been made. This case is similar to the case at hand where the Respondent found that S.L. faces a risk should she remain with the Applicants. In L.D. v. Dilico Anishinabek Family Care, the Board found that it was in the children’s best interests to be returned to their grandmother’s home.

25At paragraphs 25 and 26, the decision stated:

Under subsection 61(8.6), the Board must decide what action is in the best interests of the child and based on that determination, can confirm the proposed removal or direct that the removal not be carried out. This remedial authority presumes the child remains in the care of the foster parent. If the child has been removed, the Board has no authority to direct that the child be returned to the foster home. In some cases where the chid is removed for risk, the foster home is closed. The Board has no authority to order the home to be re-opened. In those cases, the Board fulfils its legislative mandate by determining the action that is in the child’s best interests.

The Board recognizes that there is a gap in the legislation however this gap concerns the Board’s remedial authority and not its jurisdiction to review. The Board acknowledges that it is the Legislature that must fill this remedial gap.

26In KF and RF v Children’s Aid Society of Hamilton, 2018 CFSRB 10, the Board considered whether the CFSRB had the jurisdiction to make an interim order to return a child to an applicant pending completion of the hearing. At paragraphs 14 and 15, the Board found that the CFSRB has jurisdiction to direct the return of a child in an interim order pending completion of a section 109 hearing, but that the jurisdictional decision must take into account the child’s best interests.

27In P.M. and L.M. v. Highland Shores Children’s Aid Society, 2014 CFSRB 45, the CFSRB issued an interim order to return the child to the foster parents based on the child’s best interests analysis.

28Given these decisions, the Panel finds that the Board has the jurisdiction to review and make an interim order regarding the placement of S.L. at the group home. As noted in the cases cited above, the order must be based on a best interests analysis.

29Finally, the Panel also wishes to highlight the importance of parties adhering to Directions issued by the Board. The placement of S.L. was subject to a direction dated October 7, 2021 wherein the parties agreed that S.L. would not be moved from her current placement until the hearing has concluded unless the Applicants and S.L. consent. The Panel notes that the OCL had agreed based on the direction not to move on its motion to have S.L. returned to the foster home. It is fundamental to procedural fairness that parties are held to undertakings and directions issued by the Board.

Best Interests Analysis

30The CFSRB considered the factors outlined in section 179(2) of the Act, as well as the evidence and argument submitted by the parties.

31Based on its review of the documents presented related to the Motion, the Panel finds that there is an overall paucity of evidence related to S.L.’s best interests related to the proposed move.

32The Panel has before it general statements regarding S.L.’s disabilities and intellectual limitations; however, no party has provided any specific evidence attesting to S.L.’s developmental and physical needs as well as the proposed facility’s ability to meet these needs.

33This lack of evidence also comes into play in terms of the weight placed on S.L.’s views and preferences. In its Application, the Applicants indicated that S.L. had the cognitive functioning of a 6 or 7-year-old, while she is 17. The evidence provided in support of the Motion and Cross-Motions do not provide detail related to S.L.’s functioning and ability to consent. The Panel takes its direction from the Preamble of the Act as well as s. 15 of the Act which addresses the rights of children and young person to be heard.

34The Panel was provided with some evidence on S.L.’s views and preferences. The Applicants and the OCL argued that S.L. was clear that she did not want to be moved to the group home. The Respondent provided evidence that S.L. indicated that she would like to live at the group home: “until she is able to go back to her foster parents (SIC)”. After a review of the entirety of the evidence related to S.L.’s views, it is clear that S.L. ultimately wants to be returned to her foster parents’ home.

35The issue of continuity of care is a significant factor in the best interests analysis. The outcome of the hearing on the merits of the Application will be decided in approximately one month’s time. One possible outcome is for S.L. to be returned to the foster parents’ home. Based on a review of the evidence before it, the Panel found that, moving S.L. and disrupting her current routine for such a brief period would be detrimental to her continuity of care given that S.L. has been living in the hotel for some months now.

36The Panel considered S.L.’s physical, mental, and emotional needs. While living at a hotel is not ideal and falls short from a home environment (not having access to a full kitchen; decorating a room as she sees fit etc. as argued by the Respondent), the OCL has not indicated any deficiencies in the care and support S.L. is currently receiving at the hotel. The OCL points out that the Respondent has not enrolled S.L. in school or online schooling. Should she be moved to the group home, she would only attend school for a short time before Christmas break.

37With respect to peers, the Panel has not been provided with evidence regarding the types of peers and expected relationships S.L. would have with peers at the group home. In fact, the Panel has not been provided with information regarding the group home’s target populations and therapeutic approach to assess the fit between S.L.’s physical, mental, and emotional needs and the group home.

38The Panel noted that the Respondent has agreed to continue with the existing access schedule. The Respondent proposes to take S.L. from the facility to Brantford for such purposes. The Panel was not provided with any evidence related to the possible impacts of travel 130 kms, each way on S.L., especially in winter driving conditions, and the disruption of regular travel on S.L.’s routines.

39The Panel considered the availability of the bed at the group home. The Panel found that it was not provided with evidence that the group home could not guarantee that the bed would not continue to be available to S.L. at the conclusion of the hearing on the merits of the Application.

40The Panel considered the cost implications for the Respondent; however, it placed no weight on the potential additional costs given that this is not a factor enumerated in the best interests test in s. 179(2).

41Based on the totality of the evidence before it, the Panel finds that it has not been provided with sufficient credible or trustworthy evidence to support the Respondent’s argument that there is sufficient necessity to move S.L. before the Application is decided on its merits in late December.

42For the reasons cited above, the Panel finds that it is in S.L.’s best interests to remain in her current placement until the Application is decided.

ORDER

43The Respondent is ordered not to move S.L. from her current placement until the conclusion of the hearing on the merits of the Application.

44The Respondent’s Motion is dismissed.

45Given time restrictions; and given the decision not to move S.L. before the end of the hearing, the Panel also dismisses the OCL’s Cross-Motions.

CONFIDENTIALITY ORDER

46Pursuant 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.