CHILD AND FAMILY SERVICES REVIEW BOARD
Applicants
v.
Jewish Family and Child Service of Toronto
REASONS FOR DECISION
Date: November 1, 2011
Citation: 2011 CFSRB 38
Indexed as: Applicants v. Jewish Family and Child Service of Toronto (CFSA s.61)
INTRODUCTION
1This is a decision of the Child and Family Services Review Board (“Board” or “CFSRB”) in an application under section 61 of the Child and Family Services Act R.S.O. 1990 c.11 (“Act’). This decision deals with a motion brought by the Jewish Family and Child Service of Toronto (the “Society”). The Society asked the Board to dismiss the application in light of a final restraining order between the child and the Applicants made by the Ontario Court (“Family Court”) on June […], 2011.
2The Board heard the parties’ submissions on the dismissal motion on July 11, 2011. The Board allows the motion and dismisses this Application for the reasons that follow.
BACKGROUND
3The child, M. is a crown ward in the care of the Society. The child was removed from the care of the Applicants, who had been his foster parents for approximately four years, on May […], 2010. The Applicants commenced their application to the Board under section 61 of the Act on May […], 2010. The Applicants seek an order rescinding the decision to remove the child from their care. They want the child returned to their care. The Applicants’ foster home was closed by the Society in October 2010. The child is currently residing in a group home and is under the care of [Treatment Centre]. The child has access to his maternal grandfather under the crown wardship order.
4The Board’s proceedings commenced in August of 2010. The procedural history of this case is set out in the interim decision of the Board dated June 7, 2011.
5In a letter dated January […], 2011, the Society sought an adjournment of the Board’s proceedings to obtain an order from the Family Court restraining the Applicants from contact with the child.
6At the hearing of the motion on January 10, 2011, the Applicants produced a written undertaking to the Board and, on the record, undertook to the Board not to contact the child directly or indirectly. In these circumstances, the Board denied the request for an adjournment. The Board advised the Society that it could inform the Board of the outcome of any application for a restraining order.
7The Society advised the Board that it had obtained an interim, without prejudice restraining order from the Family Court under section 80 of the Act on March […], 2011. This order prohibited contact between the Applicants and the child and the Applicants and [Treatment Centre]. The hearing resumed on May 4, 2011.
8The Society asked the Board to adjourn or dismiss the application in light of ongoing restraining order proceedings before the Family Court.
9The Board heard the parties’ submissions on the adjournment/dismissal motion(s) on May 5. The motions were dismissed with reasons to follow. The Board released its written reasons to the parties on June 7, 2011.
10The Society advised the Board that it had obtained a final restraining order from the Family Court under section 80 of the Act on June […], 2011. The Society asked the Board to dismiss the application because of the final restraining order.
11The Board heard the parties’ submissions on the dismissal motion on July 11, 2011.
ANALYSIS
12The Board finds that the application is moot. Further, the Board is not exercising its discretion to complete this matter because to do so would mean a use of judicial resources that is not justified in the circumstances. Further, to complete this case would not be consistent with the Board’s proper decision-making role.
13Given the existence of the permanent restraining order, the Society submitted the same position that it had for the dismissal motion made on May […], 2011 at the time of the temporary restraining order. The Society reiterated its original position and argued that the application seeking the return of the child to the Applicants’ care was moot. In their submission, the Society argued that best interests had been determined by the Court, there can be no right without a remedy and that to proceed in these circumstances would be contrary to the Board’s Rules, which require efficient, effective and expeditious proceedings.
14Counsel for the child supported the position of the Society. Counsel for the child submitted that it was in the interests of the child to have finality in this matter.
15The Applicants submitted that the issue before the Board was not moot and, in their view, the Board was still in a position to determine best interests since the Court and Board have different roles and perspectives on this matter. In addition, the Applicants argued that the Court did not address the removal of the child from their home in May 2010 and thus there was a live issue between the parties. The Applicants want the Board to see the application through to completion, with particular emphasis on the May 2010 removal of the child from their home.
16The Society presented three grounds to support its motion for a dismissal of the proceedings: procedural fairness and the child’s best interests, mootness and “no right without a remedy”. The Society argued that the application should be dismissed because the Court has already decided the best interests of the child in making its section 80 restraining order and it would therefore be procedurally unfair for the Board to proceed. The Society also argued that the determination of whether or not the removal was improper is no longer a live issue because of the restraining order. And finally, the Society argued that the Board’s stated remedy, namely to return the child to the Applicants, is no longer available. As a result, the Society states in its submission that “in keeping with the equitable principle, that there is no right without a remedy, the removal of the Board’s remedy renders the continuation of this section 61 proceeding an academic exercise…”.
17The Society’s argument relies upon the doctrine of mootness as set out in the Supreme Court of Canada decision Borowski v. Attorney General for Canada l, 1989 123 (SCC), [1989] 1 S.C.R. 342 (“Borowski”) . The Borowski decision is the leading decision on the doctrine of mootness and identifies a two-step process for its analysis. The first step is to determine whether the issue is in fact moot. A moot case is one which raises only a hypothetical or abstract question at the point in time when the decision-maker must make its decision. At this stage, the decision maker must determine whether a “live controversy” about the parties’ rights remains and whether a decision can have any practical effect on those rights.
18The Society’s position is that the only issue under dispute is the placement of the child. The Applicants’ position is that the issues under dispute include the placement of the child and the manner and legitimacy of the removal of the child from their home in May 2010.
19Section 61 of the Act outlines matters related to placement and removal of crown wards. Section 61 states, in part that:
61(7) If a child is a Crown ward 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 (7), 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 7.1
(7.1) 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.
(8.6) 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.
(8.7) Subject to subsection (9), the society shall not carry out the proposed removal of the child unless,
(a) the time for applying for a review of the proposed removal under subsection (7.1) has expired and an application is not made; or
(b) if an application for a review of the proposed removal is made under subsection (7.1), the Board has confirmed the proposed removal under subsection (8.6).
(9) A society may remove the child from the foster home before the expiry of the time for applying for a review under subsection (7.1) or at any time after the application for a review is made if, in the opinion of a local director, there would be a risk that the child is likely to suffer harm during the time necessary for a review by the Board.
20All of the sections cited above relate to a foster parent’s right to a review of the proposed removal or removal of a society or crown ward. The Applicants’ position is that the Society’s removal of the child in May 2010 was unwarranted and not done in good faith. The Act gives foster parents a right to a review of a removal. In the minds of the Applicants, the manner and legitimacy of the removal is a live issue for them.
21The Board’s powers under the Act are clear. Following a review, the Board can direct the Society not to carry out a proposed removal or confirm the removal of the child and must do so based on what action is in the best interests of the child. Previous Board jurisprudence has confirmed that this authority includes rescission or confirmation of actual removals and not just proposed removals where, as here, the child was removed for alleged risk. In examining what action is in the best interests of the child, the Board must look to all relevant events including those at the time of the removal and those which follow the removal. The Board’s determination of best interests is forward looking and not frozen in time. The impact of an order rescinding the removal would be placement with the Applicants (Family & Child Services of Muskoka v. D.M. and C.M., 2010 ONSC 6018. Such a placement is prohibited as a result of the final, no contact, restraining order prohibiting the Applicants from having any contact with the child. The Board is bound by this order and the Act clearly prohibits the Society from placing the child with a person against whom there is a restraining order [s.80(6)].
22Pragmatically speaking, the outcome of this proceeding has been determined by the Family Court’s restraining order. The Board cannot make a meaningful order. While the Board can make findings of fact and law regarding the propriety of the May 2010 removal, this would not alter the Board’s inability to order the child into the care of the Applicants. The core issue between the parties has been decided because they cannot have contact. There is no live controversy and the matter is moot.
23Where a matter is moot, the Board retains the discretion to hear the moot matter. The Board has decided not to exercise its discretion in this case.
24The question that the Applicants are asking the Board to decide is whether the removal of the child was “wrongful” in May of 2010. As noted above, the role of the Board is to examine what action is in the best interests of the child. This would include an examination of the child’s best interests at the time of removal. The Applicants do not appear to be asking for the return of the child at this time and appear cognizant of the impact of the restraining order. The Applicants are concerned that the Society’s alleged failure to work with them or listen to them and the child at the time of the removal, negatively impacted on the child’s best interests and should be addressed in the interests of setting the record straight and overall accountability.
25When exercising its discretion to hear a moot matter, the tribunal should consider the extent to which the three basic rationale for the enforcement of the mootness doctrine are present. These three rationale are: the importance of an adversarial context, the promotion of judicial economy and awareness of the tribunal’s appropriate decision making function. According to the Supreme Court, the process is not a mechanical one. The consideration of the applicability of each of the rationale may not support the same conclusion and one consideration may override the others (Borowski para. 42).
26One of the key principles behind the general rule that the tribunal should not hear a moot application is that it is a cornerstone of our justice system that cases be decided in an adversarial context. In certain cases, the lack of an adversarial context will be outweighed by the importance of an issue and a tribunal could decide to hear a case that has resolved. In this case, an adversarial context exists. This is not a case that settled or in which a child was returned and the parties wanted to work together. The Society and the Applicants are involved in other legal matters relating to the child. This case is highly adversarial and there is no question that each position will be vigorously argued. Therefore, the concern about a lack of an adversarial context does not operate as a barrier to the Board’s exercise of discretion, except as addressed below with respect to the question of the Board’s awareness of not entering the legislative sphere.
27The doctrine of mootness is also informed by the desire not to waste judicial resources when there is no point in doing so. The Board has had at least fifteen hearing dates in this matter. The Applicants estimate that it will take approximately two days to complete their evidence. Based on the duration of cross-examinations to date in this hearing, the Board anticipates that it could take up to at least four days to complete the Applicants’ evidence. Additional time would then be needed for the parties to prepare and present their submissions for a hearing that has taken place at various times over the course of almost a year and a half.
28In Borowski, the Court looked at whether there were any “practical side effects on parties” when deciding whether to exercise its discretion to hear a moot case. The Board finds that in this case, there are no practical side effects that warrant hearing the moot application. The Court has drawn a conclusion about the child’s best interests looking forward. Nothing that the Board can say about what occurred at the time of the child’s removal can change the fact that the child cannot return to be with the Applicants. While the Applicants are involved in other proceedings and disputes with the Society, those proceedings all relate to events that happened well after May 2010 and no findings of the Board regarding May 2010 could in any way assist either party.
29This is not a case that raises a broader legal issue that goes beyond the parties. In such instances, courts have found that it may be worthwhile to use judicial resources to determine an issue that will have a broad impact. The Applicants want the Society held accountable for its actions at the time of removal. What happened to the Applicants and the child in May of 2010 is highly fact specific. Even if the Board could find that the removal of the child was questionable, such a finding would ultimately need to be linked to what is and not what was in the best interests of the child. There is no opportunity now for the Board to make this link, given the ruling of the Family Court and no broader legal issue to justify using resources for such a narrow, party-specific focus.
30Further, the Board heard from the child’s counsel that the child wants finality in this matter. The Board heard evidence that the child has a reactive attachment disorder and that he had experienced “triangulation” in terms of the conflict between the Society and the Applicants. Given the child’s age, his disorder and his susceptibility to being negatively impacted by conflict between the Applicants and the Society, the Board is concerned about utilizing judicial resources where the child’s stated position is that he wants the proceedings to end. The use of judicial resources necessarily entails the participation of the child, through his counsel, as he is represented in these proceedings. The Board gives great weight to the position of the child when considering whether to expend judicial resources.
31Thus, overall, the interests of judicial economy favour stopping the proceedings.
32The doctrine of mootness is also based on the rationale that courts need to demonstrate a measure of awareness of their proper law making function (Borowski, para. 40). By way of statutory context, Section 61 of the Act sets out the responsibilities and obligations of the Society with respect to the placement and removal of a crown ward. Section 61(5)(a) and (b) provide for the rights of the child, parents and foster parents under these circumstances.
61 (5) The society having care of a child shall ensure that,
(a) the child is afforded all the rights referred to in Part V (Rights of Children); and
(b) the wishes of any parent who is entitled to access to the child and, where the child is a Crown ward, of any foster parent with whom the child has lived continuously for two years are taken into account in the society’s major decisions concerning the child.
33While the legislation does create a right to be heard for eligible foster parents where major decisions about foster children are made; on its face, it provides no direct remedy for foster parents in that part of the Act (s. 61). It would be inappropriate for the Board to address the impact of the foster parents’ rights on the overall best interests of the child looking forward, without being able to determine what is in the child’s best interests. The Board has no authority to consider the Applicants’ concerns separate and apart from the analysis of the child’s best interests. Without the appropriate opportunity to hear and decide the entire case, the Board could be seen to be weighing into the legislative sphere by addressing questions of fairness to foster parents. This is so because in order to deal with the scope and relevance of fairness issues for the Applicants as foster parents, the Board would need to address the statutory scheme and interpret the legislation. Such an exercise is appropriately left to a case in which there is a live issue; where it can be based on factual findings relating to the applicable legal test.
34The Application is moot and the Board will not exercise its discretion to hear the matter.
35The Board recognizes that this has been a difficult journey for the Applicants who genuinely love the child. Having heard the evidence of the Society and of the Applicant [ ], the Board is left with questions about the appropriateness of the Society’s actions surrounding the May 2010 removal. In the circumstances, given the length of this process and the delay involved, the Board wishes to comment on some of the evidence that raises these questions.
36This evidence includes annual evaluations of the foster home, permanency planning for the child and evidence related to the incident that occurred on May […], 2010, the day before the removal of the child by the Society.
37The Society completed three Foster Home Annual Resource Evaluations for the periods 2006-2007; 2007-2008 and 2008-2009 (completed in March 2010). The Board heard testimony regarding these evaluations from the Family Services Worker assigned to the Applicants, who was responsible for completing the evaluations. All three of these evaluations reflected areas of improvement in the child’s behaviours and the Applicants’ ability to meet his needs despite his challenging behaviours throughout the four years he was placed in their care. The most recent evaluation signed in March 2010 was consistent with previous evaluations. The evaluations submitted into evidence and the testimony of the worker were consistent in portraying the Applicants as capable of meeting the needs of the child despite the challenges he posed.
38A Family Group Conference Report dated April […], 2010 included a statement about moving forward with an adoption plan for the child that included the Applicants and that the maternal grandfather supported. This report was written shortly before the incident that occurred on May […], 2010.
39The Board heard testimony from both the Society and the Applicant Mr. [ ] that the Applicant foster parents contacted the Society on May […], 2010 for support and information. The Applicant, Mr. [ ], testified that the child had returned from school in an agitated state on May […]. The child had met on that day with his worker and stated that the Applicants had no authority over him but that the worker did. The child became physically violent and out of control and pounded on the Applicants’ bedroom door. The Applicants had gone into the bedroom and blocked the door.
40The Board heard evidence that while they were in the bedroom, they phoned the Society and left a message for the on-call worker. According to the Applicant, Mr. [ ], they were seeking support and information regarding the meeting the child had had that day with his worker. The Applicants ultimately spoke to their own worker who told them to call 911 or take the child to the hospital. The Applicants’ worker testified that she had directed the Applicants to take the child to the hospital and that they had not followed this direction. She also stated that she had become aware that the child’s extreme behaviour had been more frequent than the Society had been aware, based on statements the Applicant, Mr. [ ], had made when she spoke with him on May […], 2010.
41The after hours worker testified that she returned a call from the Applicant, Mr. [ ]. A case note entered into evidence from the on-call worker indicates that she was told that the Applicants’ had spoken to their worker who suggested calling 911. It also notes the Applicant, Mr. [ ] as having said they had done that before and had sat at emergency all night; that they did not wish to restrain the child to take him to the hospital and that he does not want to call the police. The note concludes “let’s see if things escalate and call 911”. In her testimony, she advised that she told the Applicants to wait and see if the child calmed down and if he escalated, to call 911.
42The Applicant, Mr. [ ] testified that they did not take the child to the hospital because they had an appointment the next day with a psychiatrist whom they had consulted with in the past. He stated that the child “ran out of steam”, apologized for his behaviour and cleaned up everything he had thrown around. The Applicant, Mr. [ ] reported that the child had engaged in worse behaviour in the past. In addition, there had been occasions when the child was in crisis and the Applicants had gone to the hospital and spent many hours there without any result. In their view, the child was not in crisis and there was no need to seek emergency services or take him to a hospital.
43According to the Applicant, Mr. [ ], the child was fine on the following day – he completed his chores, got dressed and went to school. The Applicants
received a call that same afternoon from their worker who suggested that the child should have an assessment. She called again later in the day to say that the child’s worker was on her way to take the child to the hospital to be assessed. The Applicants were directed to pack the child’s clothes. The child was not in crisis at that time and was upset about being taken to the hospital. The child was not admitted to the hospital and did not return to the foster home. The Society admitted the child to a respite foster home on the same day and he has never returned to the Applicants’ home.
[44] The removal of the child on May […], 2010 was viewed by the Applicants as unwarranted under the circumstances and they described it as a “back door apprehension”.
45Some of the questions that the Board is left with include:
Was there confusion or misunderstanding on the part of the Applicants based on the direction given by the two different workers?
Was the direction given by the Society to take the child to hospital dependent on whether or not the child calmed down, or was it non-negotiable?
Given the foster parent evaluations, was there room to work with the Applicants following the events of May […], 2011?
46While the Board is not in a position to answer these questions, the Board has concerns from the perspective of Society accountability that warranted comment.
DECISION
47For the above reasons, the Board allows the Society’s motion and dismisses the application as moot.
Sheena Scott
Presiding Member
Gail Gonda
Board Member
Lorna King
Board Member
Dated at Toronto, Ontario on this 1st day of November, 2011