DP and JF v York Region Children’s Aid Society, 2023 CFSRB 100

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

DP and JF Applicants

-and-

York Region Children’s Aid Society Respondent

-and-

AF Added Party

INTERIM DECISION

Adjudicator: Catherine Bickley, Tracy Foster Date: July 20, 2023 Citation: 2023 CFSRB 100 Indexed As: DP and JF v York Region Children’s Aid Society (CYFSA s.192)

Introduction

1This is an Application filed with the Child and Family Services Review Board (“CFSRB”) under section 192 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1 (the “Act”).

Background

2The Applicants are seeking a review of the Respondent’s decision to refuse their application to adopt their foster child, AJ. A hearing on the merits is scheduled to start on August 16, 2023.

3The Applicants wish to engage Carol-Jane Parker of the Willow Centre to conduct an attachment assessment, prepare a report, and testify at the hearing. The Respondent opposes the assessment. As a result, the Applicants have brought this motion seeking an order for an assessment by Ms. Parker of AJ’s attachment to them.

4The Applicants also seek costs.

5The Applicants and the Respondent filed written materials in advance of the July 11, 2023 oral hearing of the motion. The Added Party did not participate in the motion.

6For the reasons that follow, the motion is granted. No costs are awarded.

Analysis

7The Applicants and the Respondent focused their submissions on section 98 of the Act, specifically section 98(2): whether an assessment “is necessary for the court to make a determination under this Part” and “the evidence … is not otherwise available to the court,” and 98(4): the qualifications and consent of the person selected to perform the assessment.

8We disagree that section 98 governs our decision on this motion.

9We explain first why section 98 of the Act does not apply to this motion. We then discuss the factors we considered in deciding to order the assessment.

Section 98 of the Act does not apply

10Section 98 is in Part V (Child Protection) of the Act while this proceeding is under Part VIII (Adoption and Adoption Licensing). Section 98(14)(c) refers specifically to a proceeding under Part VIII, “respecting an application to make, vary or terminate an openness order.” There is no reference to a section 192 proceedings in section 98.

11The purpose of an assessment in a section 192 proceeding is not the same as an assessment in a child protection proceeding. In the latter, the child’s safety is a central question. In contrast, in a section 192 proceeding the CFSRB is typically being asked to assess two different adoption plans, neither of which involve any safety concerns with respect to the child.

12Finally, evidence and procedures are more flexible in proceedings before an administrative tribunal such as the CFSRB than in the courts.

13We conclude, therefore, that the CFSRB’s decision whether to order an assessment in a section 192 proceeding is not governed by section 98. Our focus instead is on whether the proposed assessment will assist the hearing panel in deciding this matter. We address this question and other arguments raised by the Respondent below.

Will the proposed assessment assist the CFSRB in deciding this matter?

14In deciding a section 192 application, the CFSRB must consider the criteria set out in section 179(2). Subsections (a) and (b) direct the CFSRB’s attention to specific criteria. Subsection (c) directs the CFSRB’s attention to “any other circumstances of the case that the [decision maker] considers relevant” before setting out a non-exhaustive list of criteria to consider. The issue of a child’s attachment is related to some of the criteria listed in subsection (c) and is also a criterion that may be considered in its own right.

15The CFSRB has frequently found information about a child’s attachment to specific individuals to be of assistance when deciding section 109 and 192 applications: JC v. Children’s Aid Society of London and Middlesex, 2019 CFSRB 12 (“JC”); PD and DD v. Children’s Aid Society of the District of Thunder Bay, 2019 CFSRB 67; LM & LL v. Children’s Aid Society of Ottawa, 2020 CFSRB 76.

16Notably, in JC, above, at paragraph 28, the hearing panel commented on “the limitations of Dr. Blake’s assessment due to restrictions on his access imposed by the Society.” In other words, the lack of an assessment reduced the assistance that Dr. Blake was able to provide to the hearing panel.

17While information about a child’s attachment will not always be provided through a formal assessment, when such an assessment is available, it is almost always of assistance to the hearing panel.

18The Respondent submitted that there is no need for the proposed assessment because it is prepared to concede several items with respect to attachment, including:

• AJ is attached to the Applicants and looks to them for comfort and security;
• Some children experience negative consequences when being removed from their primary caregiver;
• Counselling and professional help may help to address any negative responses to separation that may come up for the child; and,
• Continued contact with the primary caregiver can lessen the negative consequences arising out of the separation.

19We find persuasive, however, the Applicants’ submission that an assessment of the quality and strength of attachment is important when considering the potential impact of a break in that attachment. While the Respondent is willing to concede certain general concepts with respect to attachment, those concessions would not give the hearing panel a full picture of this child’s attachment to the Applicants.

20In our view, the proposed assessment will be of assistance to the hearing panel in deciding this case. As discussed below, how much weight is given to the assessment report is a matter for the hearing panel to determine.

Does information available from other sources sufficiently address the issue?

21The Respondent also submitted that its staff, who have interacted with AJ and the Applicants over a lengthy period, can provide better information about AJ’s attachment than can Ms. Parker who will have more limited interactions with AJ and the Applicants. The Respondent also submitted that its staff’s education is comparable to Ms. Parker’s.

22We accept that the Respondent’s witnesses may have some useful information about AJ’s attachment to the Applicants. We question, however, whether those witnesses’ observations of AJ’s interactions with the Applicants were primarily focused on assessing AJ’s attachment to the Applicants. More likely the observations were focused on AJ’s general health, development, and wellbeing.

23Ms. Parker’s curriculum vitae and biography demonstrate significant experience with infants and children in the field of attachment. She is a psychotherapist and a psychometrist. She is a member of the College of Registered Psychotherapists and Registered Mental Health Therapists of Ontario in good standing. She has previously testified in court. We are not persuaded that the Respondent’s proposed staff witnesses have comparable qualifications and experience.

24We conclude that the information provided through an assessment by Ms. Parker will provide information that is not available from either the Respondent’s concessions or the testimony of the Respondent’s witnesses.

The proposed assessor and methodology of the assessment

25The Respondent argued that Ms. Parker does not have the necessary qualifications to conduct an attachment assessment and questioned the proposed methodology of the assessment. We have listed Ms. Parker’s qualifications above. In our view, she is qualified to undertake the proposed assessment.

26The Respondent also directed our attention to a professional discipline proceeding involving Ms. Parker which, it submitted, renders her unsuitable to carry out the assessment. We reject this submission. The professional discipline decision focused on administrative rather than substantive failings on Ms. Parker’s part. The events in question are from several years ago. Subsequently, at least one court has found, while being aware of the discipline proceeding, that Ms. Parker’s evidence “helped me greatly” with some areas where expert evidence was needed: N. v. F., 2020 ONSC 7789, at paragraph 306.

27Finally, the Respondent suggested that the proposed assessment would not be culturally appropriate for an indigenous child such as AJ. We note that the Respondent acknowledges that “[d]uring the child protection in this matter, the child was found not to be First Nations, Inuit, or Métis as the connection to an Indigenous community was considered too remote for a finding.” In any event, any issues the Respondent has with the nature of the assessment may be raised at the hearing on the merits.

28In this decision, we make no determination as to whether Ms. Parker should be accepted as an expert witness at the hearing. Nor are we determining the admissibility of the assessment report or the weight to be given to either the report or Ms. Parker’s testimony. The scope of Ms. Parker’s expertise, and whether she will be qualified as an expert witness at the hearing are decisions properly left to the panel hearing the merits of this matter. That panel will benefit from hearing directly from Ms. Parker regarding her qualifications and experience and will also have the benefit of any additional information revealed by the Respondent’s cross-examination of Ms. Parker

Conclusion

29For the reasons set out above, we conclude that it is appropriate to order the proposed assessment be carried out by Ms. Parker.

Costs

30The Applicants request an order directing the Respondent to pay the costs of this motion. Under section 17(1)(2)(b) of the SPPA, however, a tribunal can only award costs if the tribunal has made rules regarding costs. The CFSRB has made no such rules. Accordingly, we have no authority to make a costs order.

Order

31Having considered the written and oral submissions of the Applicants and the Respondent, the CFSRB orders as follows:

1. Carol-Jane Parker shall conduct an assessment of AJ’s attachment to the Applicants and prepare a report.
2. Ms. Parker shall file her report, which shall include the items set out in paragraph 5 of the Applicant’s Notice of Motion, with the CFSRB on or before August 11, 2023. A copy shall at the same time be provided to the Respondent and to the Added Party.
3. The Applicants shall pay for the assessment.
4. The Respondent shall cooperate and provide documentation to the assessor as requested.
5. The Respondent shall sign any necessary consents to facilitate the assessment.

Confidentiality Order

32Pursuant 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.