FK and IA v. Children’s Aid Society of Toronto and AS and JS, 2024 CFSRB 57

CHILD AND FAMILY SERVICES

REVIEW BOARD

BETWEEN:

FK and IA

Applicants

-and-

Children’s Aid Society of Toronto

Respondent

-and-

AS and JS

Added Parties

DECISION

Adjudicators: Tamara Jordan

Tracy Foster

Date: May 10, 2024

Citation: 2024 CFSRB 57

Indexed As: FK and IA v Children’s Aid Society of Toronto and AS and JS

(CYFSA s.192)

APPEARANCES

FK and IA, Applicants

Self-represented

Children’s Aid Society of Toronto, Respondent

Chithika Withanage, Counsel

AS and JS, Added Parties

Self-represented

OVERVIEW

1This is an Application filed with the Child and Family Services Review Board (the “CFSRB”) on November 15, 2023 under section 192(3) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1 (the “Act”).

2FK and IA (“the Applicants”) have sought a review of the decision of the Children’s Aid Society of Toronto (“Respondent”) refusing their application to adopt the child AI (“the Child”).

3The Respondent placed the Child into foster care with the Added Parties, AS and JS (collectively, the “Other Family”), in August 2022, three days following her birth.

ISSUE

4The issue in dispute is:

(a) Is it in the Child’s best interests to confirm the Respondent’s decision to refuse the Applicants’ application to adopt the Child?

RESULT

5On April 22, 2024, the CFSRB issued the following Order:

• The CFSRB confirms the Respondent’s decision to refuse the Applicants’ application to adopt [the Child].

• The Respondent shall proceed with the Added Parties’ adoption application.

6The reasons for the Order are set out in this Decision.

PROCEDURAL ISSUE

The CFSRB Has Jurisdiction to Hear the Application

7On March 5, 2024, the Respondent brought a Motion in writing seeking the dismissal of the Application for lack of jurisdiction.

8On March 15, 2024, the CFSRB issued an order finding that the CFSRB has jurisdiction to hear the Application and indicated reasons would be included in this Decision. This section includes those reasons.

9The Respondent submits that Section 192(1)(a) of the Act provides the CFSRB with jurisdiction only if a children’s aid society decides to refuse an “application” to adopt a “particular child” made by a foster parent or other person. In its motion, the Respondent argued, “at no time did the Applicants put forth a request to particularly adopt the Child, AI. It was the Society that invited them to be prospective adoptive parents for AI.” The Applicants submitted that they made a valid application for the adoption of the Child and filed correspondence supporting their position. Neither the Respondent nor the Applicants provided any case law in support of their respective positions on the motion. The Added Parties did not take any position on the motion.

10The Act and its regulations do not prescribe a form or procedure that must be followed by a person making an application to adopt a child from a children’s aid society. In Children’s Aid Society of the Districts of Sudbury and Manitoulin v. Ontario (Children and Youth Services), 2005 21120, at paragraph 5, the Divisional Court held that an application to adopt that was not made in accordance with the usual form was still a valid application to adopt under then section 144 (now section 192):

In proceedings under the Act, the “best interests, protection and well being of children” in the language of s. 1, must be the paramount objective and substance must be permitted to take priority over form.

11The corollary of this is that whether a children’s aid society initiated the application for the adoption of a child is not consequential.

12Rather than the form of an application, it is the intention of an applicant at the material time that is significant. In SD v. CAS of Sudbury, 2010 CFSRB 16, at paragraph 22, the CFSRB found that to have an application to adopt, the intention must have been expressed in a clear and unequivocal manner:

…while there must be flexibility in terms of the manner of application to adopt, the expression of interest, whether verbal or written, must be clear and not equivocal.

13In that case, the foster parents did not clearly communicate their desire to adopt to the society. While the foster mother showed interest, the foster father was unsure. Only after the child had left their home and was placed with his adoptive parents did the foster parents express an interest to adopt the child. However, their request of the society was that if the placement broke down, they would be interested. The CFSRB found the expression of interest to be equivocal, in that it was conditional on another event happening, and therefore, there was no adoption application.

14Further, a person making an adoption application is not required to call or write to any specific worker at the society or agency having care of a child to make their expression of interest to adopt a child known. In ME & ME2 v. Children’s Aid Society of Hamilton, 2011 CFSRB 34, the CFSRB found that the applicant’s clear expression of interest to adopt made to a predecessor agency, should have been known to the successor agency when it assumed carriage of the file. The CFSRB concluded that there was a collaborative practice between the societies and evidence showed that workers at the successor agency were informed about the expressions of interest. This was sufficient to find that the successor agency knew or ought to have known that such an application had been made.

15Based on these cases, in NC v Kunuwanimano Child and Family Services (s. 192 CYFSA), 2018 CFSRB 28, the CFSRB summarized the test that must be met to determine whether an application for adoption has been made:

1. Did the applicant make a clear and unequivocal expression of interest in adopting the children who are the subject of the [a]pplication before the CFSRB?

2. Was this expression of interest known to the agency, or should it have been known having regard to the agency’s obligation to pursue permanency planning for the children?

16In this case, the Applicants engaged with the Peel Children’s Aid Society (“Peel CAS”) in 2020 to be approved as potential adoptive parents through that agency. Peel CAS completed the Applicants’ home study in March 2022.

17In the summer of 2022 and again in 2023, the Respondent reached out to Peel CAS seeking prospective adoptive parents for the Child fitting a particular profile. Both times, Peel CAS identified to the Respondent that the Applicants were prospective adoptive parents. Correspondence between Peel CAS and the Respondent demonstrates that the Applicants were being considered by both agencies as prospective adoptive parents for the Child and that the Applicants were interested in adopting the Child.

18In mid-August 2023, Peel CAS contact logs indicate that the Applicants were “reconsidering their decision about adoption” of the Child and that the Applicants "did not want to proceed with adoption planning” as they were concerned about the Child’s possible developmental delays. A few days later, the Applicants changed their minds and informed Peel CAS, “[w]e just want to let you know we want to continue our adoption process for baby A [the term used by the Applicants in reference to the Child]”.

19Through Peel CAS, the Respondent resumed consideration of the Applicants as prospective adoptive parents for the Child.

20In early September 2023, the Applicants again expressed concerns to Peel CAS about the Child’s health and uncertainty about adopting the Child. However, between mid to late September 2023, the Applicant FK sent emails to the Respondent seeking to proceed (again) with the adoption of the Child.

21On September 28, 2023, in an email to the Applicants’ adoption worker at Peel CAS and two Respondent adoption workers, FK explained that the Applicants wished to adopt the Child. As part of that email, FK states, “[w]e are still standing here and open for the adoption of baby A…if any possibility please let us know”.

22On October 10, 2023, FK, on behalf of the Applicants, sent an email directly to the Respondent Foster Care and Adoption Supervisor, explaining why they had retracted their adoption plans for the Child due to uncertainty about the Child’s health conditions and deadlines for decision making and imploring the Respondent to continue to consider them for the adoption of the Child. As part of that email, FK states, “[w]e will be the best parents for her and you will be proud on [sic] this unique adoption in CAS history”.

23On November 6, 2023, the Respondent sent a letter to the Applicants (“November 2023 Letter”), that stated:

RE: Your expression of interest to adopt child A.

Thank you for your renewed interest in adopting, A. This letter serves as formal notification that the Children's Aid Society of Toronto has made the decision not to place this child with you for adoption.

Pursuant to section 192(3) of the Child, Youth and Family Services Act, you are entitled to file an application for a review of this decision with the Child and Family Services Review Board ("CFSRB") within 10 days of receiving this Notice…

24From mid-September to mid-October 2023, the Applicants expressed to several Respondent workers their intention to adopt the Child. While the Applicants had twice retracted their intention to adopt the Child, and this may be relevant to considerations of the best interests of the child under section 179(2) of the Act, this does not diminish their final expressed intention to adopt the Child through the Respondent.

25Further, the Respondent’s November Letter has the hallmarks of a letter of refusal that would have been triggered by an application. The CFSRB has considered the nature of the notice required under the former section 144(2) in JC & TB v. Children’s Aid Society of the Regional Municipality of Waterloo, 2011 CFSRB 2. In that decision, the CFSRB found that effective notice under the Act required that the notice from a society under section 144(2)(a) [now section 192(2)(a)] must include a specific reference to the right to review a refusal under section 144(3) [now section 192(3)] and use the wording from that provision to satisfy the notice requirement.

26The Respondent’s November 2023 Letter specifically refers to section 192(3) of the Act, and it notes that the Applicants are “entitled to file an application for review of this decision” with the CFSRB “within 10 days of receiving this Notice.” Furthermore, the November 2023 Letter also states that the Respondent has “made the decision not to place this child with you for adoption.” The language used is similar to that in other correspondence from a society to an applicant where an application has been found. See, for example, MH v. Children’s Aid Society of Toronto (CYFSA s.192), 2020 CFSRB 105, SK and KK v. Children’s Aid Society of Toronto, 2020 CFSRB 111, and DCG and MG v. Family and Children’s Services Niagara, 2019 CFSRB 70.

27Whether the Respondent’s November 2023 Letter used the words “expression of interest” or “application” is a distinction without a difference in this context. The Respondent effectively treated the Applicants’ expression of interest as an application for adoption of the Child given its response to them. To treat it otherwise, would have the Respondent’s form over substance argument unreasonably require the Applicants to file a formal application to the Respondent, to be denied by the Respondent, then trigger a later “formal” application by the Applicants to the CFSRB.

28For these reasons, the CFSRB finds that the Applicants in substance applied to adopt the Child, and through the conduct of the Respondent had a legitimate expectation that they could engage their appeal rights under section 192(3) of the Act. Accordingly, the CFSRB does have jurisdiction to hear this Application under section 192(1)(a).

ANALYSIS

The Respondent’s Decision to Refuse the Applicant’s Application to Adopt the Child is in the Child’s Best Interests

29In this Application, the CFSRB must determine if the Respondent’s decision to refuse the Applicants’ application to adopt the Child is in the Child’s best interests.

30The Applicants’ position is that they will provide the best home for the Child by giving her their undivided attention and love, without anyone else in their home. They contend that they were chosen by the birth parents because of their similar cultural and religious background and are concerned there is a large gap between the Child’s culture and heritage and that of the Other Family. The Applicants feel the Child may experience psychological trauma in the future due to this mismatch with the Other Family.

31The Respondent’s position is that it is in the Child’s best interests that the Child remain with the Other Family. While it concedes that the Child’s birth family has more cultural and linguistic compatibility with the Applicants, the Respondent submits that in consideration of all of the other significant relevant criteria relating to the Child’s best interests, the Child should be placed with the Other Family for adoption.

32The Other Family’s position is that it is in the Child’s best interests to remain with them. They argue that they are the only family the Child has known, the Child is part of a large community of family, friends and activities, and they have demonstrated unconditional love for and commitment to the Child regardless of her current needs and any that may arise in the future.

33The Panel assessed the evidence based on the best interests of the child criteria set out in subsection 179(2) of the Act.

The Child’s Physical, Mental and Emotional Needs, and the Appropriate Care or Treatment to Meet Those Needs: Subsection 179(2)(c)(i)

34The Other Family has readily met the Child’s physical, mental and emotional needs, and provided appropriate care and treatment to the Child. Given the Child’s current medical needs and, potential future needs, the Panel assigned significant weight to this criterion in favour of the Child remaining with the Other Family.

35When the Child was placed with the Other Family, it was known that the Child was diagnosed with a multicystic dysplastic kidney condition (“MCDK”), and that this would require medical attention. However, there was some uncertainty about what this would mean in terms of short-term and ongoing care.

36As one of the Child’s kidneys is non-functional, it is imperative that the other kidney remain healthy. The Child is susceptible to bladder infections and must go to the hospital immediately for any unexplained fever as an infection could be life-threatening. The Applicants have appropriately taken the Child to the hospital at least three times outside of regularly scheduled medical appointments when they worried that she was unwell. During those hospital visits the Child was diagnosed with bladder infections requiring antibiotics for several days.

37Due to the Child’s young age, the impact of this condition on the Child as she grows cannot be determined. There is a possibility that the cysts on the Child’s left kidney could migrate to her right kidney, and that the Child may need to have her left kidney, or possibly even her uterus removed. However, the prognosis is that she will likely live a relatively normal life.

38A nephrologist will regularly follow the Child’s progress until the age of 18. The foster mother, AS, reported the Child has attended many medical appointments and tests surrounding her kidney function. The Child does not take medication but must drink a high volume of water daily. The Other Family has established relationships with the Child’s pediatrician and nephrologist as a result of several appointments they have attended with the Child. It was undisputed that the Other Family has been diligent about monitoring and following through with the Child’s medical care. They have demonstrated that they have managed the Child’s needs despite a level of uncertainty, and as AS stated, they “take things in stride.”

39Through Peel CAS, the Respondent informed the Applicants about the Child’s kidney condition. In July 2023, a Peel CAS worker arranged a virtual meeting between the Applicants, the Child’s pediatrician, and herself. FK stated that after this meeting, the Applicants felt “with a little extra care” they could care for the Child’s medical needs.

40AS has been a post-partum and birth doula for five years, with training and experience assisting mothers with young children. As foster parents for the last 10 years, the Other Family have also cared for other children with medical conditions, such as premature babies, which required the Other Family attending many appointments and experiencing various challenges such as sleepless nights. The Other Family are also parents to their own children, including two adult children living outside their home and a 13-year-old daughter who lives with them. The Other Family have taken extensive training related to caring for children.

41The Applicants do not dispute that the Other Family has provided well for the Child’s needs. FK stated that the Applicants have benefitted from the Other Family’s experience, for example in learning how to change the Child’s diaper. The Applicants have no children of their own and they did not provide any evidence of additional relevant experience caring for children or completing training beyond that required for the purposes of being considered as a prospective adoptive family.

42In terms of the Child’s emotional and mental needs, the evidence supports that the Child appears to be well-adjusted and happy. AS testified that the Child attends daycare twice a week because AS felt that socializing the Child with other children her age was important. AS indicated that it “took two to three weeks” for the Child to accept being at daycare. AS supported the Child during this transition, including by talking with teachers and staying behind to meet the other children to ensure that the Child felt safe. The Child now has friends there and looks forward to attending.

43The Applicants spent limited time with the Child in August and early September 2023, including four daytime visits and one overnight visit. During at least three of these visits the Other Family was present or nearby. The Panel notes that the Applicants would be first-time parents without the same experience and training acquired by the Other Family.

44The Panel finds the Other Family has demonstrated they are attuned to the Child’s mental and emotional needs, in addition to her physical needs, and have provided the appropriate care and treatment to meet all of her needs. They have a proven track record in caring for the Child and being prepared to meet any future needs.

The Child’s Physical, Mental and Emotional Level of Development: Subsection 179(2)(c)(ii)

45In the Panel’s view, the Other Family is best able to ensure the Child’s continued physical, mental, and emotional development. The Panel assigned significant weight to this criterion given that there is a potential that the Child may have developmental delays requiring specialized care.

46The Other Family provided some evidence that the Child may be lagging in her development. AS testified that the Child has exhibited some “unusual” traits for her age, such as “walking on her tiptoes,” delayed speech, and “running in circles.” AS further testified that because her speech is delayed, the Child can get frustrated and at times have tantrums out of frustration of not being able to express herself. AS noted that the Child’s speech appears to have improved since she has been attending daycare. There have been no formal medical assessments of the Child’s development.

47AS maintained that the Other Family will accept the Child regardless of any developmental or other issues that may arise. AS asserted that she and the Child’s foster father, JS, have taken various types of relevant childcare training as foster parents and that she has family members with autistic children. She said they are “prepared to keep [the Child] even if she has one or more developmental issues” and that they have “literally no conditions for our love for her.”

48In their second meeting with the Child in the Other Family’s home in early August 2023, the Applicants testified they felt that the Child’s appearance was similar to a Child with Down Syndrome and questioned AS whether she felt there was a possibility that the Child had Down Syndrome or other developmental delays. FK stated AS responded that if the Child had Down Syndrome, it would be known, but there is no guarantee that the Child may not have other developmental delays. AS also informed FK that the child had some potential milestone delays, which could be indicative of something like Autism, however, this is something that would be impossible to predict in a child this age.

49Case notes submitted into evidence by the Respondent relay that the Applicants called Peel CAS on August 17, 2023 and informed their adoption worker that they did not want to proceed with the adoption of the Child. The Applicants expressed concern that the Child may have Down Syndrome because of “facial features they had read on the internet.” They also wondered whether the Child may have Autism and said they had “observed the baby sticking her tongue out and she has a big tongue and playing with her saliva.” The Applicants also stated that they felt that the Child’s kidney issue “might lead to other special needs and they don’t feel equipped to deal with a child with special needs.” They further told the worker, “If they had a million dollars to spend on services for a child with special needs they would take her”.

50A few days later, the Applicants contacted Peel CAS and indicated they wanted to keep the adoption file open but wanted more information about the Child’s health. The Applicants testified that they had “accepted the kidney condition” but felt like other potential concerns were being “hidden” from them.

51In early September 2023, the Applicants met with the Child’s nephrologist along with the Other Family. During that meeting, the Applicants questioned the nephrologist about the Child’s possible developmental delays, which the nephrologist could not answer. A few days following that meeting, the Applicants once again advised Peel CAS they did not wish to proceed with adoption because they “feel that [they] don’t have sufficient or enough information about [the Child’s] medical condition.”

52During the hearing, evidence was presented that the Applicants do not wish, in general, to adopt a child with Autism or Down Syndrome because they do not feel equipped to deal with special needs. Evidence was also presented that the Applicants advised Peel CAS on two separate occasions that they did not wish to proceed with the adoption because they did not feel they had the information they required about the Child’s health and possible developmental delays. The Applicant FK testified that the Applicants felt pressured to make a decision about adopting the Child without information they wanted at the time, but that after they made their previous decisions, they came to the conclusion they made a mistake and would accept the Child regardless of any health or developmental circumstances.

53The Panel finds that the Other Family has demonstrated that they are better positioned to deal with any physical, mental, or emotional developmental issues that the Child has currently or that may arise in the future. They have exhibited an unwavering commitment to meet the Child’s immediate needs, as well as any potential ongoing and any future needs.

54The Applicants, on the other hand, have had limited contact with the Child and there was no evidence offered to understand how they would care for the Child should she have further developmental issues or diagnoses. The Applicants’ self-reported hesitancy to adopt a child with special needs does not demonstrate that placement with them would be in the best interests of the Child. Although the Applicants stated at the hearing that they are committed to the Child and are willing to accept any conditions the Child may have or develop, the evidence shows that they were reactive in terms of their commitment to the Child based on medical information which could not be ascertained in the fall of 2023, and they twice retracted their commitment to the Child’s potential adoption placement with them given concerns with the child’s health and development.

The Child’s Race, Ancestry, Place of Origin, Colour, Ethnic Origin, Citizenship, Family Diversity, Disability, Creed, Sex, Sexual Orientation, Gender Identity and Gender Expression: Subsection 179(2)(c)(iii)

55The Panel finds that the Applicants are a close match to the race, religion, and ancestry of the Child’s birth parents. As the Panel also finds that the Other Family shares the same religion with the Child’s birth parents, this criterion was weighted moderately toward the Applicants.

56Ferdinand Herrera, the Respondent Foster Care and Adoption Supervisor, testified that prior to the Child’s birth while the birth parents were considering relinquishing the Child for adoption, Respondent workers explained to them that the Respondent would try to honour their wishes regarding the “placement family”, but that ultimately the Respondent retains the placement rights.

57The birth parents expressed to the Respondent that they wished for the child to be placed in a family with a similar background to theirs, both in terms of their faith and culture. The birth mother was born in Afghanistan and the birth father was born in Pakistan. FK testified that although the birth mother was born in Afghanistan, she was raised in Pakistan. The birth parents are conservative and traditional in their practice of the Muslim faith. The birth parents originally selected the Applicants over other families who were looking to adopt, including the Other Family, due to the Applicants’ similarity in their culture and religious observation.

58FK testified that the Applicants were both born in Pakistan (South Asia). They are closely observant Muslims, like the birth parents. FK testified that their observance includes practicing their faith daily (including Salah), Friday special prayers (Juma), monthly gatherings in the mosque, and fasting during Ramadan. FK stated that if the Child was placed with the Applicants, they would, among other things, teach her prayers and put her into Qur’an classes.

59The Other Family consists of AS, who is Guyanese (Caribbean) and JS who is Guyanese and Omani (Southwest Asian). They are also both Muslim, though not as observant as the Applicants and AS described their faith practice as “non-traditional”. AS stated that although they do not adhere as closely as the Applicants to religious practices, their “decisions” are “guided by [their] faith.” AS further testified that her parents who live next door are observant, practice their faith daily, and host breaking the fast dinners (Iftar) during Ramadan. She said her parents will impart Muslim teachings to the Child. The Other Family’s 13-year-old daughter learns from her grandparents and prays daily. AS indicated that they plan for the Child to be involved in their faith in the same way as their biological daughter. AS stated that they are open to their children making choices regarding their religious practices when they are older.

60Under this criterion, the parties primarily provided evidence related to the Child’s religion. Both families would offer the Child the opportunity to be raised in a Muslim home, with exposure to significant rituals and prayer. While the Applicants follow the same observant practice of their faith as the Child’s birth parents, AS’s parents who live next door do as well. The Other Family’s daughter also practices her faith daily and the Child could practice alongside her. While the Child would continue to identify as Muslim in either home, the Applicants share the same race and ancestry as the Child’s birth parents in addition to close alignment with them in the practice of their faith.

The Child’s Cultural and Linguistic Heritage: Subsection 179(2)(c)(iv)

61The Panel finds that the Applicants share with the Child’s birth parents a close cultural and linguistic heritage. The Panel weighs this significantly toward the Child’s best interests in being placed with the Applicants.

62FK stated when they met virtually with the birth parents, the families spoke Urdu to each other, the native tongue of the birth parents and the language spoken in the home of the Applicants. FK testified that the Applicants would teach the Child Urdu. FK stated that the Child’s birth parents commented during the meeting, “we always wanted a couple like you to be our family [for the Child’s adoption].”

63FK testified that the Applicants originate from the same region as the birth parents and would offer the Child exposure to the same foods and traditions that she would have had with her birth family. FK contended that regardless of the involvement of AS’s parents in the Child’s religious teachings, in the Applicants’ “culture”, daughters typically learn more through the mother about their religion.

64AS relayed that although they expressed a desire to adopt the Child early in their journey of fostering the Child, they were aware of the birth parents’ wishes for the Child’s cultural match. AS testified that she had expressed her disappointment to the Respondent and birth mother, but also told the birth mother she would support it because she accepted the birth mother’s desire for a closer match to the birth parents’ cultural background.

65After the Applicants advised the Respondent the second time that they were not prepared to move forward with adoption, the birth parents’ position on the acceptance of the Other Family’s proposal to adopt the Child changed. Mr. Herrera, the Respondent Foster Care and Adoption Supervisor, testified that in September 2023, the birth parents met in person again with the Other Family. The birth parents told the Respondent Pregnancy and After Care Worker that once they saw how attached the Child was to the Other Family, including the way the Child hugged and ran to them, they believed the Child should not be separated from the Other Family.

66Nevertheless, it was undisputed among the parties that the Applicants provide the closest match to the Child’s cultural and linguistic heritage.

The Importance for the Child’s Development of a Positive Relationship with a Parent and a Secure Place as a Member of a Family: Subsection 179(2)(c)(v)

67The Panel finds that the Child has developed a significant bond with the Other Family and appears secure as a member of that family. The Panel has assigned significant weight to this criterion in favour of the Child remaining with the Other Family.

68Since being placed with them as a foster child at three days old, the Other Family is the only family the Child has known. AS testified that the Other Family has not placed any conditions on their care or acceptance of the Child as a member of their family.

69AS also testified that the Child calls AS and JS “mom” and “dad” and they refer to the Child as their daughter. The Child is close to the Other Family’s 13-year-old and visits AS’s parents, who she calls “papa and grandma”, every day.

70There was no evidence presented to support that the Child could not develop a positive relationship with the Applicants. FK testified that even though the Child has been with the Other Family for “eighteen months”, she expected that the Child would be attached to the Applicants in a few weeks. FK further stated that in the short time the Child spent with the Applicants she was happy and had no difficulty “attaching”.

71Although the Applicants have expressed what appears to be genuine love for the Child, they have not exhibited the same level of unconditional commitment to the Child’s security in their family as have the Other Family. The Applicants twice retracted their commitment to proceed with adoption planning for the Child when they were concerned about the Child’s medical and possible developmental issues. Given the concerns described by the Applicants during the time of their retractions and the possibility of the Child requiring specialized medical and developmental care in the future, the Panel assesses the placement of the Child with the Applicants as a risk to a secure placement. On the other hand, the Other Family’s unwavering commitment to the Child and their experience and training suggests that they will continue to offer a secure place for the Child within their family, and one within which the Child already sees AS and JS as her parents.

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: Subsection 179(2)(c)(vi)

72The Panel finds that the Child has strong relationships and emotional ties to the Other Family, as well as the Other Family’s extended family, friends and community. The Panel gave significant weight to this criterion in favour of the Child remaining with the Other Family.

73AS recounted that the Child is very close to her immediate family, which also includes AS’s parents who live next door. She said the Child runs to their 13-year-old daughter, who helps with the Child’s hair, dresses and plays with her. According to AS, her parents spoil the Child, and they often babysit or attend appointments with her.

74In addition to her attachment and relationships with her immediate family, the Child has many friends who live on the same street. A girl, about six months older than the Child is an immediate neighbour to the Other Family, and a seven-year-old across the street plays with the Child regularly. The Other Family’s daughter has an 11-year-old friend who the Child loves, and the first name spoken aloud by the Child was the name of that friend.

75AS stated there are multiple cousins in their extended family and JS’s nephew has four children under the age of six years who visit often. The Child attends many family events. The Other Family lives in a small, closeknit community and the Child goes to the park often. They participate in various holiday events and activities in the community. The Child has several friends at the daycare she attends twice weekly.

76The Other Family maintains contact with the Child’s birth parents, mainly the birth mother, via text. AS shares pictures and videos of the Child with the birth mother. AS reports that she and the Child have also met up with the birth parents and their cousins and siblings at a mall. AS stated that she lets the birth mother drive how much contact she would like with the Child.

77Given the limited number of visits the Applicants had with the Child, they were unable to provide evidence of relationships or ties within their extended family or community. Nevertheless, FK testified that in addition to the two Applicants, there is a group of approximately 10 families, who are all family friends who would be part of the Child’s community. These friends are all from Pakistan. Two of the families live within walking distance of the Applicants’ home and the other families live between a half-hour to a one-hour drive away. Together the families have 17 children, the youngest being three years old.

78FK stated she would be the primary caregiver of the Child, that she left her job to become a full-time mother, and the Child would not attend daycare if placed with the Applicants.

79FK testified the Applicants have not maintained contact with the birth family, however, if the birth parents were interested, the Applicants would be happy for them to participate in the Child’s life. FK also stated that the Applicants would welcome the Other Family to keep in contact and stated that the Applicants have great respect for them.

80The Panel finds that severing the Child’s ties and relationships with the Other Family, their extended family and friends, and in the community would be significant for the Child, who is accustomed to being surrounded by numerous people and engaging in many activities.

The Importance of Continuity in the Child’s Care and the Possible Effect on the Child of Disruption of that Continuity: Subsection 179(2)(c)(vii)

81The Panel believes that a disruption to the Child’s continuity of care would negatively impact the Child despite her young age. The Panel finds the Child’s best interests favour the Child remaining with the Other Family and assigns this criterion significant weight.

82The Child is now approximately 21 months old and came into the care of the Other Family shortly after her birth. It is undisputed by the other parties that she is attached to the Other Family. As described above, the Child has a full and active life, and a large community of immediate and extended family and friends.

83FK testified that although the Child has been with the Other Family since birth, she will attach to the Applicants in a few weeks and that in the short time the Child spent with the Applicants, she was happy and had no difficulty bonding with them. FK stated the Applicants believe that the Child is still young enough that thinking long-term for the rest of her life, the effect of disruption to the Child in moving to live with the Applicants would be minimized. The Applicants provided no other evidence in support of their position.

84In reviewing this consideration, the Panel considered K.S.1 v. CAS of the County of Simcoe, 2010 CFSRB 17, a review of a children’s aid society’s refusal of an application to adopt. In this case, the children’s aid society believed that since the child had strongly attached to the Applicants, she could easily re-attach to another family. The CFSRB refuted that, noting at paragraph 40,

The theory that a child who has formed a strong attachment can re-attach

to others is significant in those cases where a child must be moved. The

theory is less valuable where the child has formed a significant attachment

and does not have to be moved. In those cases, one must examine the

impact of an unnecessary removal.

85Additionally, the Panel considered the Divisional Court’s decision in JE and KE v. Children’s Aid Society of the Niagara Region, 2020 ONSC 4239. In this decision, the Divisional Court provided additional guidance to the CFSRB in applying the best interests of the child test.

• At paragraph 80 of the decision, the Divisional Court directed the CFSRB to consider the totality of the evidence before it, including that 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.

• At paragraph 99, the Divisional Court explained: “[t]o 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.”

86In addition to considering the best interests of the Child, the Panel must also be mindful of the paramount and other purposes of the Act. Section 1(2)2 of the Act directs the CFSRB to seek the “least disruptive course of action that is available and is appropriate in a particular case to help a child” and is a compelling other purpose in considerations under this criterion.

87The evidence before the Panel indicates there is no care-based reason to move the Child in this case. Indeed, it is undisputed that the Child is receiving excellent care from the Other Family.

88Moreover, given the Child’s attachment to the Other Family and that they are the only family she has known, the Panel believes there is a risk of trauma to the Child in removal from them. There was no evidence presented by the Applicants to support that the risk of trauma to the Child in being removed from the Other Family was outweighed by placement with the Applicants.

89The Panel believes that disrupting the Child’s continuity of care would be impactful and potentially traumatic on the Child without justification and contrary to the guiding legislation and jurisprudence related to this criterion.

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

90In this case, the Child is under the age of two years and cannot express an informed view on this issue and the Panel assigns little weight to this criterion. However, the Panel is of the opinion the Child would wish to remain with the Other Family.

91The parties did not provide independent opinions from professionals who may have worked with the Child and who could have provided insight on this criterion. The Panel took direction from PD and DD v. Children’s Aid Society of the District of Thunder Bay, 2019 CFSRB 67 at paragraph 78 which reads:

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.

92There was evidence provided that the Child is close to AS’s parents and “barrels towards their house” to see them. There was further evidence presented regarding the Child’s friends on the street where she lives, and her active participation in neighbourhood events.

93The Child has lived in the Other Family’s home for almost the entirety of her life and the evidence presented portrays that the Child is happy and has developed relationships with the family, friends and community that surrounds her.

94There was no dispute among the parties that the Child is attached to the Other Family.

95The evidence of the Applicants was that the Child also appeared to be at ease in spending time with them, however this is based on only five visits with the Applicants.

96The Panel finds that upon consideration of the objective indicators involving the Child that her views and wishes would be to remain with the Other Family.

The Effects on the Child of Delay in the Disposition of the Case: Subsection 179(2)(c)(viii)

97There was no evidence presented by any of the parties on this consideration.

98The Panel finds, however, that there will be no negative impact related to delay in the disposition of this Application as the Child will continue to be placed with the Other Family. The Panel encourages the Respondent to complete the necessary requirements to finalize the adoption with the Other Family as soon as possible to achieve placement permanency for the Child.

CONCLUSION

99Having heard the evidence, considered the submissions of the parties, and in light of the Panel’s findings set out above under each of the considerations relevant to this Application under section 179(2) of the Act, the CFSRB has decided it is in the best interests of the Child to confirm the Respondent’s decision to refuse the Applicant’s application to adopt the child and for the Respondent to proceed with the Other Family’s adoption application as soon as possible.

100While the Applicants are more closely matched with the Child’s birth family in terms of race, ancestry, practice of the Muslim faith, and linguistic and cultural heritage, all other relevant considerations of the Child’s best interests under section 179(2) of the Act favour the Child remaining with the Other Family. The Other Family has a demonstrated commitment toward meeting all the Child’s current needs, accepting all of the possible future needs of the Child including related to any medical needs and developmental delays, raising the Child in the Muslim faith, and maintaining relationships with the Child’s birth family. Remaining with the Other Family will provide continuity in the Child’s care without any possible trauma of disruption, and within the wide, secure circle of family, friends, relationships, and community that the Other Family has established for the Child and the Child has only known.

ORDER

101The CFSRB confirms the Respondent’s decision to refuse the Applicants’ application to adopt the Child.

102The Respondent shall proceed with the Added Parties’ adoption application.

CONFIDENTIALITY ORDER

103Pursuant 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.