AY v Highland Shores Children’s Aid Society, 2023 CFSRB 112

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

AY

Applicant

-and-

Highland Shores Children’s Aid Society

Respondent

INTERIM DECISION

Adjudicators: Tamara Jordan, Linda Lennon, Tracy Foster

Date: December 19, 2023

Citation: 2023 CFSRB 112

Indexed As: AY v Highland Shores Children’s Aid Society (CYFSA s.109)

WRITTEN SUBMISSIONS

A.Y., Applicant

Phillip M. Crannell, Counsel

Highland Shores Children’s Aid Society, Respondent

Charlotte Chittenden, Counsel

E.L., Child

Kady McCourt, Counsel (OCL)

Introduction

1This is an Application filed with the Child and Family Services Review Board (“CFSRB”) under subsection 109(8) of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1 (the “Act”).

2The Applicant has requested that the CFSRB review the Respondent’s removal of her foster child, E.L. (“the Child”). The Respondent removed the Child from the Applicant’s home in October 2023.

3A hearing on the merits was scheduled to start on December 18, 2023. After the motion, on the consent of the parties, the hearing was adjourned while the parties return to Court for a Status Review Application.

4The Applicant brought a motion seeking, among other things, an interim order of the CFSRB placing the Child with the Applicant pending a final determination of the Application on the merits.

5On November 27, 2023, the CFSRB issued an Interim Order rescinding the removal of the Child from the Applicant’s home and ordering that the Child be returned by November 30, 2023. This Interim Decision provides the reasons for the Panel’s Interim Order.

The Law

6The paramount purpose in section 1 of the Act is to promote the best interests, protection and well-being of children. The Preamble of the Act acknowledges that children are individuals with rights to be respected and voices to be heard.

7The Relevant provisions in section 109 of the Act are as follows:

(8) A foster parent who receives a notice under clause (7) (a) may, within 10 days after receiving the notice, apply to the Board in accordance with the regulations for a review of the proposed removal.

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

8To make its decision, the CFSRB must consider the over-arching considerations set out in the Preamble and section 1 of the Act as well as the enumerated factors in subsection 74(3).

9Subsection 74(3) of the Act states that when making a determination in the best interests of the child, the CFSRB is specifically required to consider the factors set out in subsections (a), (b) and (c).

background

10The Child is 10 years old. She lived with the Applicant as a foster child from June 2021 to October 2023.

11The Applicant has not had her own children and the Child was the Applicant’s first foster child.

12In March 2023, in the child protection proceeding involving the Respondent, the Child’s parents and the Office of the Children’s Lawyer (“OCL”), the Superior Court of Justice issued an Order, on consent, placing the Child in Extended Society Care (“Court Order”). As part of the Court Order, the Respondent was ordered to “maintain [the Child’s] current foster placement and shall bring a Status Review Application if the placement is changed for any reason apart from adoption by the current foster parent.”

13In the summer of 2023, the Applicant was struggling in her relationship with the Child and sought respite care following the suggestion of the Respondent.

14The Respondent arranged for respite care for the Child with a relief foster family (“Other Foster Family”) from September 25 to October 1, 2023, with a one-night return on September 28, 2023 to the Applicant to enable the Child to attend a Girl Guides event with the Applicant.

15On September 29, 2023, the Applicant sought additional respite from the Respondent and the Respondent arranged for the Child to have an extended visit with her paternal grandparents between October 1 to 10, 2023.

16On October 2, 2023, the Respondent provided the Applicant with a letter dated September 29, 2023 giving notice of the Respondent’s intent to remove the Child from the Applicant’s home on October 10, 2023 (“Notice Letter”). The Applicant filed an Application with the CFSRB on October 6, 2023 seeking the return of the Child.

17On October 10, 2023, the Respondent placed the Child with the Other Foster Family.

18On October 13, 2023, Jodie English, Respondent Children’s Service Supervisor, sought and obtained the opinion of Suzanne Anquetil, Respondent Director of Service, to have the Child removed from the Applicant’s home (“Director’s Opinion”).

Positions of the Parties

19The Applicant submits that the Child was improperly removed from her home without the Respondent having provided proper notice nor advising her of her right to have her decision reviewed by the CFSRB. The Applicant acknowledges experiencing periods of doubt and frustration with fostering the Child, especially in the months of August and September 2023, for which she sought the assistance of the Respondent as well as respite care for the Child. The Applicant maintains that the Child is safe in her care and that it is in the Child’s best interests to be returned to her care.

20The OCL submits the Child should not have been removed from the Applicant’s home and that “the Child rigorously objects to having been moved and wishes to return to the Applicant’s foster home.” The OCL asserts that the Respondent’s removal of the Child from the Applicant was done contrary to the Act and has “impacted [the Child] negatively.” The OCL submits that a best interests analysis supports the return of the Child to the Applicant’s care pending the hearing of the Application.

21The Respondent submits that the removal of the Child from the care of the Applicant was done in accordance with subsections 109(6) and 109(17) of the Act and that it is not in the best interests of the Child to be returned to the care of the Applicant due to the risk that the Child is likely to suffer harm during the time necessary for a review by the Board. The Respondent maintains that the Applicant has shown an escalating pattern of unsafe parenting for a child in care.

Analysis

The Respondent Failed to Provide the Applicant with Statutorily Required Notice under Subsection109(7)(a)

22Subsection 109(7) of the Act sets out the requirements for a society’s notice of proposed removal of a child from a foster parent:

(7) If a child is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) and has lived continuously with a foster parent for two years and a society proposes to remove the child from the foster parent under subsection (6), the society shall,

(a) give the foster parent at least 10 days notice in writing of the proposed removal and of the foster parent’s right to apply for a review under subsection (8)

23It is undisputed that on October 2, 2023, the Respondent provided the Applicant with the Notice Letter. The evidence of several Respondent affiants supports that the Notice Letter was written on October 2, 2023 but backdated to September 29, 2023.

24The Notice Letter failed to inform the Applicant of her right to apply to the CFSRB for a review of the Respondent’s proposed removal.

25As notice was not effectively provided to the Applicant until October 2, 2023, the period of notice of proposed removal ought to have expired on October 12, 2023, 10 days later.

26Documentation in the Respondent’s files shows on October 2, 2023, Michelle Forestell, Respondent Child Protection Worker, informed the Child that she, the Child, would not be returning to the Applicant’s home. The Panel finds that this constituted effective removal of the Child from the Applicant’s home.

27The notice requirements in section 109 of the Act are mandatory and serve several important purposes. First, they notify foster parents of decisions that significantly impact their lives and the lives of children in their care. Second, they advise foster parents and prospective adoptive parents that they have a right to have those decisions reviewed by the CFSRB. Third, they provide clarity about the time period in which foster parents and prospective adoptive parents can apply to the CFSRB. That period is very short, only 10 days from when notice is received. This short time period ensures that children and families do not remain in a state of uncertainty for a prolonged period.

28In failing to inform the Applicant about her right to apply to the CFSRB for a review under subsection 109(8) of the Act, and removing the Child from the Applicant’s home before October 12, 2023, the Panel finds that the Respondent failed to provide the Applicant with notice as required under subsection 7(a) of the Act.

The Respondent Sought the Opinion of a Local Director under Subsection 109(17) after Removing the Child

29Subject to subsection 109(17) of the Act, the presumption under subsection 109(16) is that a child must not be removed from a foster home pending the decision of the CFSRB 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).

30Subsection 109(17) provides an exception where a society may remove a child from a foster home prior to the CFSRB’s decision on an application for review where a child is at risk:

(17) 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 of a local director, there is a risk that the child is likely to suffer harm during the time necessary for a review by the Board.

31On October 13, 2023, the Respondent sought and obtained the Director’s Opinion. This was 11 days after the Child was effectively removed from the Applicant’s care, and after the expiry of the time for the Applicant to apply for a review under subsection 109(8) of the Act. A review of the Director’s Opinion that the Child was likely to suffer harm during the time necessary for a review by the CFSRB is set out below under the Panel’s consideration of the Child’s best interests.

32A children’s aid society, under subsection 109(17) of the Act, may at any time seek the opinion of a local director if it is concerned that there is a risk that a child is likely to suffer harm during the time necessary for a review by the CFSRB.

33However, a society may not retroactively seek the opinion of a local director to justify the removal of a child before the expiry of the time for an applicant to apply for a review before the CFSRB.

34In this case, the Panel finds that the Respondent did just that, demonstrating further disregard of relevant provisions of the Act and the proper procedures to be followed related to a section 109 application to the CFSRB.

35While the Panel is deeply concerned about the Respondent’s conduct, including the impact of this on the Child and the Applicant, the Panel’s decision whether to rescind the removal of the Child from the Applicant’s home is based solely on its assessment of the evidence based on the best interests criteria set out in subsection 74(3) of the Act.

Best Interests Analysis

36The test for the CFSRB 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 at paragraph 2 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. [emphasis in original]

37The CFSRB is required to make a substantive decision in the best interests of the child and, in doing so, is mandated to take into account any of the specifically enumerated best interest factors that are relevant. The Panel’s analysis is set out below according to each of the criterion in subsection 74(3) of the Act.

The Child’s Views and Wishes: Subsection 74(3)(a)

38The importance of considering a child’s views and wishes was recently articulated by the CFSRB in JD v Children’s Aid Society of London and Middlesex, 2023 CFSRB 62 at paragraph 69:

In its repeal of the predecessor legislation (the Child and Family Services Act) in 2018, and the enactment of new sections in the present Act, the Ontario government reinforced the importance of hearing from children and including them in decision-making. This is evident from the first sentence of the Preamble to the Act that acknowledges that “children are individuals with rights to be respected and voices to be heard”. The Act’s emphasis on giving the views of children their due weight in accordance with their age and maturity is a theme that continues through the Act, including in Part II which comprehensively addresses the rights of children receiving services both generally and specifically while in care, and through the reformulated “best interests” considerations in subsections 74(3) and 179(2) of the Act.

39The Child is ten years old. In her statement provided through the OCL (“Child’s Statement”), the Child expresses several views and wishes. These include the following:

• “I want to go back to live with [the Applicant] as soon as I can. It is very important to me that I get to return home”
• “I find it very hard to be away from [the Applicant]”
• “I want to live with [the Applicant]. [The Applicant’s] home is my only home”

40The OCL submits that the Child’s “views and preferences have been clear and consistent and should be afforded significant weight in the determination of her placement. [The Child] views the Applicant as a parent and considers the Applicant’s residence to be her home. [The Child] feels safe in the care of the Applicant.”

41The Applicant submits, “[the Child] has voiced a strong, consistent, independent wish to return to the Applicant’s care. [The Respondent] is of the view that this opinion should be disregarded, qualified, and otherwise minimized, despite the overwhelming statutory requirements to the contrary and the clear and unequivocal caselaw.”

42The Respondent concedes the Child has expressed views and wishes to remain with the Applicant. The Respondent submits that the Child “has also had clear views about the harm inflicted on her at the hands of the Applicant which have either been verified or have pending investigations.”

43The Panel finds that, on the evidence, the Child’s clearly expressed views and wishes are to remain with the Applicant. Given the Child’s age approaching a pre-teenager, and in light of the statutory obligations and Preamble in the Act to respect and hear the voices of children, the Panel places significant weight on this criterion.

First Nations, Inuk or Métis Child: Subsection 74(3)(b)

44There was no evidence before the Panel that the Child is First Nations, Inuk or Métis. As such, no weight was given to this criterion.

Other Relevant Circumstances: Subsection 74(3)(c)

45While each of the criteria under subsection 74(3)(c) of the Act has been assessed, the Panel found that the decision of what action is in the best interests of the Child turned primarily on subsections 74(3)(c) (i), (v), (vi), (vii), (x) and (xi), in addition to subsection 74(3)(a), above.

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

46The Child has had a history of bowel incontinence since entering care, a condition also aggravated by stress. Her incontinence is managed by a daily laxative drink or gummies. Initially the Child’s condition presented as a challenge and learning curve for the Applicant. These concerns with management of the condition appear to have been mitigated with intervention and the Applicant is providing the appropriate care. There is no evidence before the Panel suggesting there are additional physical needs of the Child.

47The Child also has a history of trauma and vulnerability rooted in her previous experiences with her biological parents. Due to her history, the Child has exhibited some trauma-based behavioural responses. The Applicant stated the Child has “at times been defiant, manipulative, dishonest and combative” and further stated that she is aware the behaviours are “manifestations of trauma.”

48The Child has attended therapy since entering the Applicant’s care. The Applicant joined therapy with the same counsellor a few months later, both individually and in joint sessions with the Child.

49When the Child first entered into the care of the Applicant, the Applicant did not have experience working with children with trauma-based behaviours. There were some challenges and conflicts between the Applicant and the Child. Some of the Child’s behaviours were elevated after visits to her biological family.

50The Applicant participated in programming arranged through the Respondent, including the Parent Enrichment Program (PEP) and Circles of Security toward helping her appropriately address the emotional needs of the Child.

51Although there was a learning curve and adjustments to be made, it appears the Applicant was meeting the needs of the Child in March 2023, at the time of the Respondent’s consent to the Court Order maintaining the Child’s placement with the Applicant.

52No significant concerns were noted between the Applicant and the Child between March 2023 and late summer 2023.

53Between July and September 2023, evidence of the Respondent and Applicant establishes that the Applicant was questioning her role as a foster parent. By September 2023, the Respondent offered the Applicant respite care for the Child and the Applicant accepted this commencing on September 25, 2023.

54In her Affidavits, the Applicant is forthcoming about her own doubts about providing for some of the emotional needs of the Child in August and September of 2023.

55The Applicant indicates she was “feeling burnt out and was questioning whether she and the Child could make things work long term.” The Applicant claimed that she did not communicate her doubts about her long-term commitment to the Child and that she did not let her frustrations interfere with caring for the Child.

56The Applicant also acknowledged in her Affidavit that during a heated argument with the Child she muttered that the Child was “being a bitch” and the Child overheard her. The Applicant stated that she regretted this and apologized to the Child when “things calmed down.”

57In an email to the Respondent on September 12, 2023, the Applicant stated:

My friends and family are concerned with my mental health moving forward and so am I. I don’t find joy in having [the Child] anymore and [the Child] deserves to be treated kindly and with love and I don’t feel like I am giving that to her right now. I feel more negative than positive and just “hoping” things will get better is absolutely not working anymore.

58The Respondent outlined several concerns related to the Applicant’s ability to meet the Child’s needs by late August 2023.

59Most significantly, on August 25, 2023, the Child and Applicant’s counsellor (“Counsellor”) emailed Ms. Forestell noting that she was concerned that “there was a pattern of [the Child] feeling “dismissed/criticized/source of annoyance to/by [the Applicant]” and [the Applicant] was presenting in sessions, with overall “limited compassion and delight in [the Child], and at times limited patience and increased annoyance with her.”

60Respondent workers met shortly thereafter and concluded that although the Counsellor’s concerns did not qualify for a child protection investigation, the concerns constituted a complaint about the Child’s rights in foster care being violated. An informal, internal Quality-of-Care complaint process was initiated and ultimately verified on September 12, 2023. The Quality-of-Care complaint was verified based on emotional harm to the Child caused by the Applicant’s behaviours including incidents such as name-calling, calling the Child a liar, and telling the Child she had not missed her when she returned home from a weekend of relief.

61The Applicant refutes several of the ways in which the Respondent characterizes these events. As detailed above, the Applicant acknowledges she was experiencing doubts and frustrations, but states she believes that the Respondent is misstating or exaggerating many of their concerns, such as the incident where she muttered that the Child was “being a bitch.”

62In the Respondent’s Notice Letter, the Respondent informed the Applicant of its “worry that the agreed-upon intervention of counselling has not been effective to yield any changes in the caregiver-child relationship.”

63On October 12, 2023, after the Child was removed from the Applicant’s home and placed with the Other Foster Family, the Applicant signed a Safety Agreement with the Respondent relating to the Applicant’s access with the Child. As a preamble to the Safety Agreement, the Respondent notes:

The Society recognizes there have been times where things have been really good between [the Child] and [the Applicant]. However, the Society is also worried that [the Applicant] cannot safely parent [the Child] full-time given the issues that have arisen since the Informal Complaint in August 2023.

64In the Safety Agreement, the Applicant agreed to the following conditions:

• There will be no hands-on responses, yelling, screaming, or name-calling with/to [the Child] when she presents with difficult or challenging behaviours.
• Conversations will focus on how [the Child] is doing, activities [the Child] and [the Applicant] are engaging in, and will be future-focused.
• There will be no discussion about [the Child]’s past disclosures, including no coaching [the Child] to redact information she has shared with the Society in the past.
• There will be no adult conversations with [the Child], including but not limited to discussions about [the Child]’s potential return to [the Applicant]’s care, discussions about the CFSRB process, or conversations about the Status Review proceedings/Court.
• Conversations around [the Child]’s current foster placement will be encouraging and supportive, and if [the Child] raises issues [the Applicant] will encourage [the Child] to share her worries with her CSW and redirect the conversation.
• If [the Child] asks to call her CSW or CAS, her foster parent, her Dad or her paternal grandparents, [the Child] will be allowed to make these phone calls.
• If [the Child] asks for access to end early, whether due to conflict or otherwise, [the Applicant] will support [the Child] returning to her foster home earlier than planned.

65Upon the signing of the Safety Agreement, the Child has had unsupervised weekly overnight visits, some extended visits (including the weekends of October 13 to 15 and October 27 to 29, 2023), and regular phone access with the Applicant.

66The Panel finds that by August 2023 the Applicant was experiencing significant stress as a foster parent to the Child. The Panel also finds that the Applicant was continuing counselling and asking the Respondent for help to enable her to continue to provide for the Child’s emotional needs.

67The Panel finds that given the extent of the Applicant’s stress in her role at that time, and on the evidence of both the Applicant and the Respondent, that at least some emotionally harmful messaging would have been passed to the Child. This would not have been meeting the emotional needs of the Child. However, on the limitations of the untested hearsay and double hearsay evidence presented by the Respondent relating to the Counsellor’s concerns, it is unclear the degree to which that was happening and the impact on the Child.

68Further, the Panel finds that the Safety Agreement signed between the Applicant and the Respondent sets out clear parameters to guide the Applicant toward meeting the Child’s emotional needs. This mitigates the Panel’s concerns about the Applicant’s ability to meet the Child’s emotional needs on an interim basis.

69The Panel assigns this criterion significant weight. The Panel finds in favour of the Respondent on this criterion given the emotional needs of the Child at the time of her removal from the home and the Applicant’s stress at that time.

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

70The Child appears to be developing physically, mentally and emotionally in line with her age, and there is no contradictory evidence in that regard. She engages in age-appropriate activities and has no noted issues at school.

71As such, no weight was given to this criterion.

(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

72There is no evidence before the Panel of concerns existing with the Child’s best interests not being met based on the Child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression. As such, no weight was given to this criterion.

(iv) the child’s cultural and linguistic heritage

73There is no evidence before the Panel of concerns existing with the Child’s best interests not being met based on the Child’s cultural and linguistic heritage. As such, no weight was given to this criterion.

(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

74Evidence before the Panel from various sources including the Applicant, the Respondent staff and the Child demonstrate the Child is bonded with the Applicant, though there have been some periods of strain over the more than two years that the Child has lived with the Applicant.

75The Applicant articulated that she and the Child “clicked” instantly and are extremely close. The Applicant states the Child often refers to the foster home as her “forever home.” She also states the Child has her own cat at the Applicant’s home, and the Applicant’s dog and cats have become the Child’s pets.

76The evidence shows that during the time when the Applicant was struggling in August and September 2023, she maintained her commitment to the Child: “[d]espite my personal doubts, I never gave up on [the Child]. On the contrary, at every occasion where the Society asked if I was prepared to continue with [the Child], I emphatically said yes.”

77In the Child’s Statement, the Child expressed a strong connection with the Applicant, her home and her pets.

• “[the Applicant’s] home is my only home. I feel worse about being removed from [the Applicant’s] home than I felt when I was removed from the care of my biological mom. I feel loved when I am with [the Applicant]. When I talk to my friends about [the Applicant] I refer to her as my "mom" because she feels like a mom to me.”
• “I miss my pets… at [the Applicant’s] home and I wish that I could live with them again.”

78The Respondent detailed an incident at the end of August 2023 in which the Applicant expressed to the Child that her place in the home may be dependent on the Child’s behaviour. In her Affidavit, Ms. Fitzpatrick stated that the Applicant disclosed to her a discussion she had with the Child after returning home from weekend access with her grandparents. The Applicant told the Child, “maybe you should live somewhere else”, to which the Child responded, “like forever?” The Applicant then told the Child “she had to follow the rules and [the Child] apologized and pinky-swore to listen better.”

79The Panel finds that although untested, the evidence from the Respondent relating to this incident is conveyed in such detail that the Panel finds this discussion likely occurred. Such remarks to the Child, as retold by Ms. Fitzpatrick, may lead the Child to feel her home with the Applicant was not secure. The Panel also recognizes that these remarks were made during the Applicant’s crisis in the summer of 2023 and there is no evidence to suggest the Applicant made regular remarks of this nature to the Child.

80The Panel finds that despite the strains in their relationship, there is a close bond between the Child and the Applicant, and this has been expressed by each of them. The Panel balanced the strong statements made by the Child relating to her relationship with the Applicant and the foster home with the Respondent’s evidence relating to remarks made by the Applicant during a period of crisis. The Panel weights this criterion significantly and in favour of the Applicant.

(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

81The Child’s close relationship to the Applicant and ties to her home have been described above. The Applicant’s evidence does not mention extended family, and she has no other children. The Child appears to maintain positive social relationships in the Applicant’s community. The Child and Applicant actively participate together in Girl Guides, where the Child has many friends. Girl Guides are an important activity for the Child, and by accounts of all parties, it has strengthened the Applicant and Child’s bond. The Applicant also noted the Child has a “good friend” who is also in foster care across the street.

82The Applicant and the Child also participate in other activities together. In the Child’s Statement, she refers to some of the activities she enjoys with the Applicant such as “travelling, going to Niagara Falls, going on hikes, Girl Guides activities, taking our dog for walks, going out for ice cream, swimming in our neighbour's pool and going on big bike rides to the beach.”

83The Child has access to her biological family including her biological mother, father and paternal grandparents through the Court Order. The Child has supervised visits with her biological mother and biological father and is able to spend some weekends with her paternal grandparents. The evidence does not detail the relationship of the Child with her biological family, though it does appear to be complicated with her biological parents due to her traumatic upbringing.

84Evidence from the Respondent suggests that the Child has bonded with the Other Foster Family, who have two other children in the home including a 14-year-old daughter. The Other Foster Family lives approximately 20 minutes from the Applicant and the Child remained at the same school and continues in the same extra-curricular activities she participated in while in the Applicant’s care.

85The Panel finds that positive aspects exist with both placements. The Child has bonded with the Other Foster Family, and there are other children in the house. However, the Child does not have the same amount of access to her pets and friends with only one overnight stay in the Applicant’s home per week. The Child expressed her pets are important to her. Given the Child’s past trauma, access to pets and time with friends provides comfort and a sense of belonging in the community.

86The Panel finds that this criterion favours the Applicant and assigns significant weight.

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

87Continuity of care is important to children, especially those who have experienced trauma. Except for one six-week period with a different foster family prior to coming into the Applicant’s home, the Child has lived with the Applicant since being apprehended from her biological parents. The Applicant states that part of the emotional needs of the Child stem from “housing instability in her home of origin.” The Child experienced having been removed from her biological family at the young age of seven.

88The Applicant attached to her Affidavit a contact log written by Ms. English on October 17, 2023, that describes behaviours of the Child shortly after her placement with the Other Foster Family. These included: the Child breaking down in tears with a Respondent worker, a behaviour “very unlike” the Child; the Child sobbing in her sleep; and the Child regressing in her incontinence, including smearing faeces on the walls, bed and herself.

89The Panel finds that it is in the Child’s best interests to remain with the Applicant, the most stable placement since the Child’s removal from her biological parents. As evidenced by her uncharacteristic crying in front of workers, sobbing in her sleep and a regression in incontinence, the removal of the Child from the Applicant caused the Child’s regression in incontinence and at least some trauma.

90The Panel places significant weight on this criterion in favour of the Applicant.

(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent

91The Applicant is in the extended care of the Respondent and will not be returning to the care of her biological parents.

92On this interim motion, the Panel is not assessing the parties’ long-term plan for the Child’s care.

93The Panel makes no findings on this criterion and assigns it no weight.

(ix) the effects on the child of delay in the disposition of the case

94The Panel assigned no weight to this criterion as it is not relevant in this matter.

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection

95Subsections 74(3)(c)(x) and (xi) of the Act are typically most relevant in the consideration of a child’s best interests within the context of child protection hearings in the courts. However, the risks to a child in remaining in or being removed from a foster parent prior to the hearing on the merits in a section 109 application are also relevant.

96In this Application, the Respondent removed the Child then later sought and obtained, under section 109(17) of the Act, the Director’s Opinion, that there a risk that the Child is likely to suffer harm during the time necessary for a review by the CFSRB. The Panel reviews here what it has assessed as risk to the Child in light of the evidence.

97In her Affidavit, Ms. Anquetil stated she received an email from Ms. English, “On October 13, 2023, I was further advised by [Ms. English] about the history of the matter, chronology of verified and unverified incidents, support services provided to the Applicant, risk of both physical and emotional harm to [the Child] if she remained in the Applicant's care, the current open investigation and the Society's decision to close the Applicant's foster home on October 13, 2023.” The email refers to an investigation at that time, and the Respondent’s decision to close the Applicant’s foster home. Ms. Anquetil states that based on the information she received from Ms. English, she formed the assessment that she had “reason to believe that [the Child] is at risk of further physical and emotional harm in the care of the Applicant and [the Child] cannot be adequately protected if she remains in her care on an interim and/or final basis.”

98In her email, Ms. English details allegations about the Applicant’s behaviours leading to the verified Quality-of-Care complaint in September 2023. The email also outlines some of the Applicant’s past behaviours toward the Child and supports that were provided to the Applicant. Ms. English summarizes, “we [Respondent staff] do not feel there are any other supports or interventions we can offer [the Applicant] to prevent ongoing emotional & physical harm to [the Child].”

99The OCL notes that Ms. Anquetil’s response to Ms. English approving the decision to remove the Child from the Applicant’s home was sent within 21 minutes of receiving the email.

100One of the past concerns noted in Ms. English’s email, involved an incident that occurred prior to the March 2023 Consent Order. In June 2022, the Respondent verified that there was a “risk of physical harm” and a “risk of emotional abuse” to the Child arising from the Applicant’s behaviour during an incident where the Applicant called the Child a “brat”, turned the Child around and the Child’s hair was pulled. The following is stated in the Respondent’s verification decision:

“After reviewing the information obtained throughout the investigation, we are verifying risk of physical harm (1.1.I). While we are willing to give [the Applicant] the benefit of the doubt, that her ring may have gotten caught in [the Child]'s hair, we do not feel that [the Applicant] had sufficient grounds to go 'hands on' in any manner with [the Child] in this situation (should only go hands on if worry for [the Child]'s immediate safety).“

“…the Society is also verifying risk of emotional harm (3.1.B). [The Child] recalled [the Applicant] yelling at her and calling her a brat and [the Applicant] confirmed that both of these are in fact truthful. [The Applicant] was therefore additionally cautioned that she cannot be yelling at the foster children nor can she be calling them names of any sort.”

101The Respondent has indicated that it is investigating a separate incident involving the Applicant’s alleged “hair-pulling” of the Child on September 28, 2023. The Applicant strongly denies any hair pulling occurred in September 2023. The Applicant describes that in June 2022, the Child’s hair got caught in her rings when she turned the Child around to face her. The Respondent remained concerned that the Applicant was “hands on”, in turning the Child around by the shoulders to face her. Although an investigation was opened related to the September 2023 allegations, there was no evidence offered that this incident was verified.

102Further to the Safety Agreement signed by the Applicant as detailed above, a contact log from Ms. English dated October 13, 2023, discussing weekly overnight access with the Applicant after the Child was removed states, “[Ms. Forestell] and [Ms. Fitzpatrick] both feel confident [the Child] will be safe with [the Applicant] in the coming weeks because they feel [the Applicant] will be on her best behaviour as she is wanting [the Child] to be placed with her. We also recognize there have been times that were really good between [the Applicant] and [the Child]. These are considered mitigating factors for our big concerns.”

103In the Child’s Statement, she expressed, “I feel safe with [the Applicant]” and “I feel loved when I’m with [the Applicant].”

104The OCL is of the view that the Child feels safe in the care of the Applicant and is currently having weekly overnight visits and extended visits with the Applicant.

105The Panel considered the risk of emotional harm to the Child, including some of the Applicant’s behaviours during August and September 2023 in particular.

106The Panel finds that there is no evidence that the Applicant has physically harmed the child, and that the only verified risk of physical harm to the Child related to the June 2022 incident during which the Applicant turned the Child to face her. The Respondent gave the Applicant the benefit of the doubt that her rings got entangled in the Child’s hair as she turned her. The Panel notes that the only verified risks of harm following an investigation were prior to the Respondent’s consent to the March 2023 Court Order placing the Child with the Applicant.

107The Panel weighed the risk of emotional harm of the Child being with the Applicant against the risk of emotional harm by not allowing the Child to return.

108Since the Child was removed from the Applicant, the Child has had weekly access with the Applicant and occasional extended stays, including one long weekend stay immediately after the Director’s Opinion. There was no evidence presented to suggest that there were any safety concerns during this period or the subsequent visits between the Applicant and the Child. The Respondent has noted that it expects the Applicant to be on her “best behaviour” in the coming weeks and the Applicant has signed a Safety Agreement that details specific behaviours the Applicant is to avoid when the Child is with her. In consideration of these circumstances, the Panel finds that risk of harm to the Child has been sufficiently mitigated on an interim basis.

109The Panel places significant weight on these criteria and favours the Applicant.

conclusion

110In assessing the best interests of the Child under subsection 74(3) of the Act, the Panel found in favour of the Applicant on an interim basis.

111The Panel found that subsections 74(3)(b),74(3)(c)(ii), (iii), (iv), (viii) and (ix) did not apply.

112The Panel gave significant weight to subsections 74(3)(a), 74(3)(c)(i), (v), (vi), (vii), (x) and (xi). The Panel found in favour of the Applicant in all cases, except subsection 74(3)(c)(i) which the Panel found in favour of the Respondent.

DECISION

113Having reviewed the written submissions of the parties, and in light of the Panel’s findings set out above under each of the considerations relevant to this Application, the CFSRB has decided it is in the best interests of the Child to rescind the Respondent’s decision to remove the child from the Applicant and return the Child to the Applicant, on an interim basis.

ORDER

114The removal of the Child from the Applicants home is rescinded. The Child shall be returned forthwith, and in any event by November 30, 2023.

confidentiality order

115Pursuant 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.