GM and KM v. Child and Family Services of Grand Erie, 2024 CFSRB 97

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

GM and KM Applicants

-and-

Child and Family Services of Grand Erie Respondent

-and-

CM and AM Added Parties

INTERIM DECISION

Adjudicators: Tamara Jordan, Donna Wowk

Date: September 17, 2024

Citation: 2024 CFSRB 97

Indexed As: GM and KM v Child and Family Services of Grand Erie (CYFSA s.109 & s.192)

APPEARANCES

GM and KM, Applicants Sandra Askew, Representative

Child and Family Services of Grand Erie Respondent Darryl Clarke, Counsel

CM and AM Added Parties Amy Katz, Counsel

OVERVIEW

1This proceeding is comprised of two Applications filed with the Child and Family Services Review Board (“CFSRB”) under sections 192 and 109 of the Child, Youth and Family Services Act 2017, S.O. 2017, c.14, Sched.1 (“the Act”). The Applicants are seeking a review of the Respondent’s refusal of their application to adopt the child, ZS (“the Child”) and of the proposed removal of the Child from their foster home.

2The Child is a little over two-and one-half years old. He has been in the continuous care of the Applicants as a foster child since early January 2022 when he was three days old. There is another foster child in the Applicants’ home, LH, who is nine years old.

3On August 2, 2024, the Child went on a scheduled four-day visit to the home of the Added Parties.

4On August 2, 2024, the Respondent commenced a child protection investigation based on concerns of a risk of emotional harm to the Child and LH by the Applicants.

5The Respondent did not return the Child to the Applicants on August 6, 2024 after the Child’s scheduled visit with the Added Parties ended.

6The Respondent filed a pre-hearing motion dated August 7, 2024 under section 109(17) of the Act for an order allowing the Child to reside with the Added Parties pending the hearing and the release of the decision on the merits of the Applicants’ request for a review under sections 192 and 109 of the Act.

7On August 15, 2024, the CFSRB issued an Interim Order that included rescinding the Respondent’s removal of the Child from the Applicants’ home and ordering that the Child be returned to the Applicants forthwith and, in any event, by no later than 1 p.m. on August 19, 2024.

8This Interim Decision provides the reasons for the CFSRB’s August 15, 2024 Interim Order.

ISSUE

9The issue in dispute is:

i. Is it in the Child’s best interests to grant the Respondent’s motion for an order allowing the Child to reside with the Added Parties pending the hearing and release by the CFSRB of its decision on the merits on the Applicants’ Applications under sections 192 and 109 of the Act.

RESULT

10The Respondent’s motion is dismissed. It is in the Child’s best interests to remain with the Applicants pending the hearing and release by the CFSRB of its decision on the merits on the Applications.

PROCEDURAL ISSUES

11There are two procedural issues arising from the Respondent’s failure to return the Child to the Applicants on August 6, 2024.

Procedural Issue #1: The Respondent Failed to Provide the Applicants with Statutorily Required Notice under Subsection 109(7)(a)

12On August 6, 2024, the Respondent informed the Applicants that the Child would not be returning to the Applicants’ home as scheduled and would instead be remaining with the Added Parties on an “extended visit” pending the conclusion of its protection investigation. There is no evidence before the Panel with respect to the child protection investigation which appears to be ongoing.

13At the time of hearing the Respondent’s motion on August 14, 2024, the Respondent had not provided any contact as between the Child and the Applicants for 12 days.

14The Panel finds that the Respondent effectively removed the Child from the care of the Applicants and placed him with the Added Parties on August 6, 2024.

15Subsection 109(7)(a) of the Act sets out the requirements for a society’s notice of a proposed removal of a child from a foster parent as follows:

109(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)

16The notice requirements in section 109 of the Act are mandatory. They serve several important purposes including notifying foster parents of decisions that significantly impact their lives and the lives of children in their care and advising foster parents and prospective adoptive parents that they have a right to have those decisions reviewed by the CFSRB.

17The statutory scheme is intended to avoid the very situation that has unfolded here: the destabilization of a child’s life while his ultimate placement remains undecided. As noted in NC v. Kunuwanimano Child and Family Services, 2018 CFSRB 28, at paragraph 82, these provisions “promote the best interests, protection and well-being of children by ensuring that their placements are disrupted as little as possible” prior to the review period expiring or a decision being rendered by the CFSRB.

18The Panel finds that the Respondent failed to provide the Applicants with notice as required by subsection 109(7)(a) of the Act when it removed the Child from the Applicants’ foster home on August 6, 2024.

Procedural Issue #2: Removal of the Child from the Applicants’ Foster Home Contrary to [Subsection 109(16)](https://www.canlii.org/en/on/laws/stat/so-2017-c-14-sch-1/latest/so-2017-c-14-sch-1.html#sec109subsec16_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/so-2017-c-14-sch-1/latest/so-2017-c-14-sch-1.html)

19The CFSRB issued a Case Management Direction on May 7, 2024 directing that pursuant to sections 109(16) and 109(17) of the Act, the Respondent shall not carry out the proposed removal of the Child from the Applicants’ foster home until the CFSRB process had ended, unless the Child is likely to suffer harm during that time.

20Section 109(16) of the Act is explicit that, subject to subsection 109(17) which addresses a risk that the child is likely to suffer harm during the time necessary for a review by the CFSRB, a society shall not carry out the removal of the child unless,

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

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

21Subsection 109(17) of the Act provides an exception and states as follows:

109(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.

22The evidence submitted by the Respondent did not include an opinion of a local director that the Child was likely to suffer harm during the time necessary for a review by the CFSRB. Indeed, there is no evidence that the Respondent made any efforts to obtain the requisite local director’s opinion.

23The Panel finds that the Respondent did not meet the mandatory requirement in subsection 109(17) of the Act for an opinion by a local director that there is risk that the Child is likely to suffer harm during the time necessary for review by the CFSRB. Its failure to do this demonstrates further disregard of the relevant provisions of the Act and the proper procedures to be followed related to a section 109 application to the CFSRB.

24In the current case, the Respondent’s failure to give notice and its improper removal of the Child from the Applicants’ home created a situation that was not in the Child’s best interests. This situation could have been avoided had the Respondent simply followed the required statutory obligations.

25While the Panel is concerned about the Respondent’s conduct, including the impact of that conduct on the Child, the Applicants, and the Added Parties, the Panel’s decision whether to rescind the removal of the Child from the Applicants’ home pending a hearing on the merits is based solely on its assessment of the evidence based on the best interests criteria set out in subsection 74(3) of the Act.

ANALYSIS

The Appropriate Test and Considerations by the CFSRB on the Interim Motion

26It is the Respondent’s submission that the test to be applied on this motion is akin to the test applied at a first appearance in court in a temporary care and custody hearing under subsection 94(4) of the Act. That is not correct.

27The test to be applied by the CFSRB when reviewing a decision in a section 192 adoption refusal or section 109 removal of a foster child from a placement was established by the Ontario Divisional Court in Family, Youth & Child Services of Muskoka v. D.M. and C.M., supra at paragraph 2 which provides a detailed analysis of the CFSRB’s mandate when making a decision in the best interests of a chid:

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]

28The CFSRB must determine if the Respondent’s decision to remove the Child from the Applicants’ home is in the Child’s best interests. To make that decision, the CFSRB must consider the governing principles of the Act set out in the Preamble and the purposes of the Act in section 1, and the enumerated best interests of the child factors in subsection 74(3) of the Act.

29During the course of submissions, counsel for the Respondent submitted that the Applicants’ foster home had been closed to additional children and suggested this should be a factor in favour of the Child remaining with the Added Parties. Counsel for the Added Parties submitted that, given the closure of the Applicants’ foster home to additional children, the CFSRB did not have jurisdiction to order the return of the Child to the Applicants’ home.

30Decisions by the CFSRB are based on evidence. Submissions are not evidence. There is no evidence before the CFSRB of any closure or restrictions on the Applicants’ foster home.

31Moreover, subsection 109(15) of the Act confers broad, remedial authority on the CFSRB, as confirmed by the Ontario Divisional Court in Family, Youth & Child Services of Muskoka v. D.M. and C.M., 2010 ONSC 6018.

32Further, as held by the CFSRB in Applicants v. Children’s Aid Society of Hamilton, 2014 CFSRB 48:

The Board has, on several occasions, directed a society not to carry out a removal or rescinded the removal of a child from a foster home with the direction and expectation that the Society do whatever is necessary to comply with that order. This would include re-opening of a foster home. (paragraph 12)

33Finally, the Panel notes that the Respondent’s evidence in support of its motion included substantial double and triple hearsay. The Respondent filed two affidavits in support of its motion: one sworn by Investigation Worker Melissa Sayegh (who was assigned to conduct an investigation related to the concern of risk of emotional harm to the children in the Applicants’ home), and another by Resource Worker Tanya Forde. In Ms. Forde’s Affidavit, she relies heavily on the statements and observations of Respondent Children’s Service Worker Joe Oliveira and Adoption Worker Kathy Szabo without the attachment of any exhibits (e.g., casenotes) to confirm the full context of these statements and observations. The Panel attributes little weight to the evidence provided by Ms. Forde in relation to the interactions between Mr. Oliveira and Ms. Szabo and the Applicants and Added Parties. However, even if Mr. Oliveira and Ms. Szabo had sworn affidavits with the evidence set out in Ms. Forde’s affidavit in support of the motion, it would not have changed the CFSRB’s conclusion.

Best Interests of the Child Considerations

34In making 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 relating to the best interests of the child in subsection 74(3) of the Act.

35The assessment of best interests by the CFSRB includes consideration of the over-arching principles that services for children and decisions related to them should be child-centred, be the least disruptive measure that is available and appropriate, and respect a child’s need for continuity of care. The CFSRB is mandated to take into account any of the specifically enumerated best interest factors that are relevant.

36The Panel’s analysis is set out below according to the considerations that it found relevant to the facts on the Respondent’s interim motion.

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

37The Act requires the CFSRB to consider the views and wishes of the child, giving due weight in accordance with the child’s age and level of maturity, unless they cannot be ascertained. In the case of a very young child, the child’s wishes may be given little weight but they are still a factor to be considered.

38Given his young age, the Child’s views and wishes will be inferred from his circumstances. As noted by the Divisional Court in JE and KE v. Children’s Aid Society of the Niagara Region, 2020 ONSC 4239 this is routinely done in hearings before the CFSRB.

39The Child had been in the Applicants’ care essentially from birth. The evidence before the CFSRB is that the Child was having significant and increasing difficulty separating from the Applicants for his visits with the Added Parties. Ms. Forde’s evidence is that the Child was saying “no’ and ' home”, screaming, crying, and physically struggling against leaving the Applicants’ home on August 2, 2024.

40There is evidence that the Child’s resistance to leaving the Applicants’ home for visits with the Added Parties on August 2, 2024 was not an isolated incident. It is the Applicants’ evidence that the Child showed marked changes in his normal behaviour patterns and was having tantrums and being very clingy after the start of overnight visits with the Added Parties in April 2024. On the other hand, the Respondent’s evidence is that the visits with the Added Parties have gone well; that the Child is content and happy in their care; and that once, on July 24, 2024, Ms Szabo recorded that the Child referred to the Added Parties’ residence as ‘home’ and to the Added Party, AM as ‘mommy.

41Based on the totality of the evidence, the Panel finds that the Child would wish to remain with the primary parents and family he has known since shortly after his birth. However, given the Child’s age and level of maturity, the Panel places little weight on this criterion in favour of the Applicants.

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

42Each of the criteria under subsection 74(3)(c) was considered by the Panel with some having no relevance to this motion while the others were accorded varying amounts of weight. The relevant considerations are discussed below.

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

and

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

43There is no evidence that the Applicants were failing to meet the Child’s physical and mental needs.

44There is no evidence that the Child is not developing physically, mentally and emotionally in line with his age nor is there evidence that the Applicants are not providing him with the care and environment required for this to continue.

45There was evidence provided by both parties related to the Applicants’ ability to meet the Child’s emotional needs. Most of this related to the Applicants’ actions during the transition of the Child from the Applicants’ home to the scheduled visit with the Added Parties on August 2, 2024.

46Mr. Oliveira, transported the Child to and from almost all visits with the Added Parties. On the few occasions he was unavailable to conduct the transition, the Child was transported by Ms. Forde or Ms. Szabo.

47There is no evidence as to how many transitions were conducted by Ms. Forde. The only one she describes in her Affidavit is the one she conducted on August 2, 2024.

48In her Affidavit, Ms. Forde identified concerns about the Applicants based on the Respondent’s record and her limited direct observations. In relation to concerns about the Applicants responding to the Child’s emotional needs, these include: the Applicants’ alleged refusal to facilitate the transport of the Child to and from visits with the Added Parties; in the first two weeks that access to the Added Parties was introduced in March 2024, the Applicants refused to send a specific comfort item with the Child, and on another occasion they refused to send toy cars with the Child for his visit with the Added Parties; the Applicants were unable to put aside their emotional responses to the transitions in the Child’s presence as evidenced by their unwillingness to assist workers calming the Child when he left their home for the visits, and on one occasion they ‘emotionally re-escalated’ the Child once he had been calmed by Ms. Forde.

49Ms Forde also includes in her Affidavit examples provided by Mr. Oliveira of the Applicants responding to the Child’s emotional needs, including with physical gestures such as hugs and Ms. McCoy bringing the Child onto her lap when he was distressed, and assisting the Child with transitions to visits with the Added Parties, including helping him put on his shoes.

50The Applicants deny many of the facts and issues raised by the Respondents as they relate to them not meeting the Child’s emotional needs. The Applicants assert that they did their best to prepare the Child for his visits with the Added Parties and encouraged him to go on the visits; they deny ever being asked to facilitate the transport of the Child to the Added Parties’ home for visits.

51There is no doubt on the evidence that the August 2, 2024 transition was challenging. Ms. Forde picked up the Child from the Applicants’ and transported him to the home of the Added Parties. The Applicants and the Respondent agree that the Child was distressed and extremely resistant to leaving with Ms. Forde. Ms. Forde returned with the Child to the Applicants’ home and called her office. Ms. Sayegh later attended at the Applicants’ home. Between them, Ms. Sayegh and Ms. Forde were able to get the Child into Ms. Forde’s vehicle to leave for his four-day visit with the Added Parties.

52There is no evidence that the Applicants obstructed or impeded the Child’s transition on August 2, 2024. There is evidence that the Applicants did not actively assist with the transition of the Child from their home into Ms. Forde’s vehicle. There is undisputed evidence that the Applicants videotaped the transition and Ms. Forde was unhappy about this.

53Regarding the August 2, 2024 transition of the Child to the Added Parties for a visit, it is the Applicants’ evidence that they asked the Respondent what they had done wrong that day. There is no evidence they received a response. Instead, Ms. Sayegh informed them that the Respondent was initiating a child protection investigation due to concerns of risk of emotional harm further to worries the Applicants were not supporting the Child and may be contributing to his stress response in the situation. Ms. Sayegh advised the Applicants that part of her role would be to investigate what happened prior to her arrival at their home on August 2, to determine whether or not the Child or LH were at risk of emotional harm.

54It is Ms. Sayegh’s evidence that she told the Applicants she would like to meet with them to, among other things, hear their concerns related to the Child’s access with the Added Parties and transitions specifically.

55The Applicants’ evidence is that they had concerns about the adverse effects they believed the Child’s visits with the Added Parties were having on the Child and expressed those concerns to the Respondent on more than one occasion. The Applicants felt their concerns were dismissed and, at other times, ignored by the Respondent. They stated that they did not receive any support or direction from the Respondent.

56There was no persuasive evidence provided by the Respondents that the Applicants were not meeting the Child’s emotional needs for the approximately 31 months the Child had been in their care.

57The Panel finds that there were no efforts of any significance by the Respondent to meet with the Applicants to discuss either the Applicants’ concerns about the visits, or both parties’ concerns about the transitions of the Child from the Applicants’ home to visits with the Added Parties. The Panel finds that the Respondent did not work with the Applicants to establish a process and plan for the transitions that addressed potential concerns relating to the Child’s emotional needs and that were based on evidence-informed best practices (e.g., related to the duration and timing of visits for infants and toddlers with alternate caregivers, the role of transitional comfort items between homes, and stabilizing young children before a visit).

58The Panel finds that while the Applicants may not have provided consistent emotional stabilizing support to the Child during a few transitions, including on August 2, 2024, there is no other evidence to suggest that the Applicants are not meeting the Child’s needs. There is no evidence to support that the Applicants are not providing appropriate care or that there are any concerns related to the Child’s development. In balancing the evidence, the Panel attributes little weight to this factor in favour of the Respondent.

(v) The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family

and

(vi) The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extend family or member of the child’s community

59The July 13, 2023 court order that placed the Child in the Extended Care of the Respondent is subject to access by the Child’s birth mother. The Applicants’ evidence is that they have a long, positive relationship with the Child’s birth mother, that she had access to the Child when he was in their care and that they would like this to continue. Currently, access by the birth mother to the Child only takes place while he is with the Added Parties.

60There is evidence is that the Child has a positive relationship with the Applicants and calls the Applicant, KM, ‘mama’. As previously noted, there is also evidence, albeit double hearsay, that the Child once referred to the Added Party, AM as ‘mommy’ on July 24, 2024.

61The Applicants’ home is the only home the Child knew from birth to April 2024, when the Child commenced overnight visits with the Added Parties.

62There is evidence that the Child has positive associations with the Applicants’ extended family, including the mother of the Applicant GM who he calls, “Nana”. There is also evidence that the Child appears to have a positive association with the Added Parties’ family dog, Ace.

63There was no evidence offered to demonstrate the Child’s connection to LH, the other foster child in the Applicants’ home. However, there was evidence in Ms Sayegh’s affidavit that LH expressed concerns for the Child, including being away from his “mama” during visits with the Added Parties.

64The Panel finds that the Applicants and the Added Parties have each provided connections between the Child and his birth parents and would continue to do so while the Child is in their care. While the Panel finds that both families offer the Child relationships and ties, the Applicants and their extended community, have provided the longest and most consistent relationships for the Child and the only ones during the Child’s first 27 months of life. Accordingly, the Panel finds that, pending a hearing on the merits, this factor weighs moderately in favour of the Applicants.

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

65An “other” purpose of the Act, at subsection 1(2)2 is that “the least disruptive course of action that is available and is appropriate in a particular case to help a child, including the provision of prevention services, early intervention services and community support services, should be considered”.

66The Child has been in the Applicants’ care since he was three days old. While the Child has received weekly care from the Added Parties in their home for approximately four months, the Applicants were the only family the Child knew during the preceding 27 months of his life.

67The Panel finds that the best interests of the Child favours the Child maintaining continuity with the Applicants pending the hearing on the merits. The Panel weighs this factor significantly in favour of the Applicants.

68The Panel also notes that the Respondent appears to have acted with little regard for the impact of its actions on the Child in relation to this factor. There is no evidence that the Respondent gave any consideration to the impact on the Child of removing him from the care of the Applicants then withholding all contact between him the Applicants from August 2, 2024 until at least the time the CFSRB heard the Respondent’s motion on August 14, 2024.

(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

69Subsections 74(3)(x) and (xi) of the Act are typically most relevant in the consideration of a child’s best interests in the context of child protection proceedings 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 of a section 109 application are also relevant.

70In this case, the Respondent removed the Child without notice to the Applicants and without obtaining the requisite opinion from a local director of the risk to the Child remaining with the Applicants pending the release of the decision of the Application on the merits.

71On August 2, 2024, after informing the Applicants that it was commencing an investigation into concerns of emotional harm to the Child and the LH, the Respondent left LH in the Applicants’ home yet removed the Child.

72The Respondent did not provide the Panel with particulars of the child protection investigation or its status. There is no evidence that a conclusion or verification of risk to the Child related to the Applicants has been made.

73The Panel weighed the evidence before it related to the risk of emotional harm to the Child should he remain with the Applicants pending a decision on the merits against the risk of emotional harm to the Child should he not be returned to the Applicants. The Panel finds that the evidence of the Respondent with respect to its concerns about the Applicants does not establish, on a balance of probabilities, risk that the Child will likely suffer harm pending a determination by the CFSRB of the Applications. Moreover, the Panel finds that the Respondent can help to mitigate any risks by providing the Applicants with information related to evidence-informed best practices in transitioning a toddler between caregivers and working with them to formulate a concrete plan for transitions while the Applications are before the CFSRB.

74The Panel places little weight on these criteria in favour of the Applicants.

Conclusion

75Having reviewed the evidence and written submissions of the Applicants and the Respondent, and the oral submissions of all parties, the Panel concluded that the Respondent did not prove, on a balance of probabilities, that there is risk that the Child is likely to suffer harm during the time necessary for the CFSRB to determine the issues in the Applications.

76The Panel further concludes, after weighing the relevant considerations under subsection 74(3) of the Act, that it is in the best interests of the Child to remain in the Applicants’ home pending the hearing of the Applications on the merits.

ORDER

77The removal of the Child from the Applicants’ care is rescinded. The Child shall be returned to the Applicants forthwith and, in any event, by no later than 1 p.m. on August 19, 2024.

78The parties shall, in the best interests of the Child, work together to create a written plan forthwith and by no later than August 19, 2024, that sets out clear expectations of all parties during the Child’s transitions between the homes of the Applicants and the Added Parties, and that reflects evidence-informed best practices for a young child.

79In the interim, the Respondent shall not expand the Child’s visitation time with the Added Parties beyond the schedule that was in place prior to August 2, 2024. The Respondent shall also consider, based on evidence-informed best practices, the most appropriate form of visitation between the Child and the Added Parties in the interim, given his age and stage of development.

CONFIDENTIALITY ORDER

80Pursuant 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 these Applications, 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.