V.T. and D.T. v. Children’s Aid Society of London and Middlesex, 2012 CFSRB 50

CHILD AND FAMILY SERVICES REVIEW BOARD

V.T. and D.T. v. CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX

REASONS FOR DECISION

Date: October 31, 2012

Citation: 2012 CFSRB 50

Indexed as: V.T. and D.T. v. Children’s Aid Society of London and Middlesex

(CFSA s.144)

INTRODUCTION

1[ ][the Child] is sixteen months old. The Applicants, [V.T] and [D.T.] (the “Applicants”), his foster parents, want to adopt [ ] (the “Child”). He has lived with them and their two biological daughters, ages fifteen and eleven, since he was two weeks old. The Society is seeking Crown wardship for [the Child] with the intention of placing him for adoption. There will be a Court Hearing in 2013, at a date to be determined, when the cases of [the Child] and his half-sister [ ], currently age three months, will be considered at the same time.

2The Society refused the Applicants’ application to adopt [the Child]. The Applicants applied to the Child and Family Services Review Board (the “Board”) for a review and sought a decision rescinding the Society’s refusal of their adoption application for [the Child].

3This is an application under section 144 of the Child and Family Services Act (the “Act”). The main issue before the Board was whether the decision of the Society, based on concerns related to the Applicants’ financial status, should be upheld by the Board in light of the fact that the foster parents have provided excellent care to the Child, and he is attached to them and they to him.

4The Society’s position is that the Applicants’ financial situation precludes them from being able to adopt the Child without potential financial and emotional stress to the entire family. Additionally, it recognizes that planning for the Child must take into consideration plans for his half-sister, [ ] (“sister”). The Society acknowledges that the Applicants love the Child and have been excellent foster parents to him.

5The Applicants’ position is that they love the Child, [the Child] and believe that they will be able to manage their finances in a way that will allow them to adopt him. They are prepared to consider adopting his sister as well.

6The Board’s decision is to confirm the Society’s decision to refuse the Applicants’ adoption application of [the Child].

JURISDICTION

7The Society brought a motion challenging the Board’s jurisdiction to hear the application. The Board rendered a decision at the hearing that it had jurisdiction and proceeded to hear the merits of the application. The reasons for the decision on the jurisdiction motion are the following.

8The Society’s position is that the Child and Family Services Act is a “statutory pathway” and should be read in a continuum, meaning that any discussion on adoption must necessarily come after the Court has made a determination on the child’s need of protection and Crown wardship. Accordingly, section 144 of the Act giving the Board its jurisdiction to hear an application to review a society’s decision to refuse an application to adopt a particular child, cannot be heard before a child is made available for adoption. A child is available for adoption when the Court has decided Crown wardship without access for the purpose of adoption. Section 144 is located in Part VII of the Act which deals with adoption and this section only comes into play after Part III, child protection, has been exhausted.

9It is also submitted that section 144 should not be read in isolation. If an application to review a refusal of an adoption application could be brought before the child is declared in need of protection and made a Crown ward, Part III of the Act would be without effect, it would be like skipping ahead in the legislation.

10According to the Society, having the Board hearing a section 144 matter before that point would be interpreting the Act against the best interest of the child. It would prevent the Society to propose a plan of care or identify kin for placement, which is the normal course of action when the parties are under Part III of the Act. If the Board takes jurisdiction to hear a section144 and rescind the society’s decision, the Society argues that the child is locked in and the Society’s hands are tied.

11This last argument relates to the interpretation of section 144 (12)

Subsequent placement

(12) After a society or licensee has made a decision referred to in subsection (1) in relation to a child, the society shall not place the child for adoption with a person other than the person who has a right to apply for a review under subsection (3) unless,

(a) the time for applying for a review of the decision under subsection (3) has expired and an application is not made; or

(b) if an application for a review of the decision is made under subsection (3), the Board has confirmed the decision. 2006, c. 5, s. 36.

12The Applicants’ position is that the issue is of legal nature and they did not feel in a position to respond to the Society’s argument.

13The Child has not yet been found in need of protection and the Protection Application in this matter, as well as the one of the Child’s half sister are currently before the Superior Court of Justice. The Society seeks an Order for Crown wardship with the intention of placing the Child for adoption. The trial judge has postponed the hearing on the matter because of the current application before the Board and because of the plan presented by the father of the Child’s sister. The judge wants the two files to proceed together. The return date is scheduled in February 2013.

14Section 144 (1) reads:

Decision of society or licensee

144. (1) This section applies if,

(a) a society decides to refuse an application to adopt a particular child made by a foster parent, or other person; or

(b) a society or licensee decides to remove a child who has been placed with a person for adoption. 2006, c. 5, s. 36.

15This application is made pursuant to section 144(1) a) of the Act. This section does not create any pre-condition that the child must be a Crown ward without access for the purpose of adoption. The only conditions are that the adoption application must have been made for a particular child, not for any child, and that the Society must have made a decision to refuse the application. The words used by the legislator are clear and do not raise any ambiguity. Where the legislator has sought to limit a right of review before the Board to circumstances where children are crown wards, it has done so. Specifically, in s. 61(7) of the Act, the legislator explicitly states that the child must be a Crown ward before a foster parent may seek a review of the proposed removal of the child from the foster placement. The legislator has clearly turned its mind to the question of when Crown wardship is necessary and when it is not in order for the Board to have its powers of review relating to foster parents.

16The location of section 144 in the Act cannot by itself justify an interpretation that the child needs to be a Crown ward when the section does not mention that condition. Of course, the right given to a foster family or any other person to request a review of a society’s decision to refuse an application to adopt belongs in the adoption section of the Act. But the decision of a society to refuse an application to adopt a particular child does not necessarily happen always after a child has been made a Crown ward and is made available for adoption which explains, in the opinion of the Board, the fact that section 144 does not apply restrictively to when a child is available for adoption.

17The Society recognized that it has a policy to use concurrent planning for a child, which means that adoptive families will be canvassed while the Society waits for the Court decision on the protection application. This practice goes beyond the recent amendment at section 141.1.1 (1) which says that nothing in the Act prevents a society from planning for the adoption of a Crown ward in respect of whom there is an access order in effect. The reality is that home studies are made and families are identified as potential adoptive families. Sometimes, where foster parents want to adopt or prospective adoptive parents qualify as foster parents, a placement with a view to adopt is made. If the child is made a Crown ward for the purpose of adoption, the formal, legal placement for adoption may occur immediately after the time period to appeal the Crown ward decision has expired. The approach is to avoid multiple placements and to find the right family for a child as soon as possible.

18To limit the jurisdiction of the Board to after a child is made a Crown ward could create a situation that is not in the best interest of the child. If the Board was to give effect to the Society’s interpretation, a person may express his wish to adopt a particular child but would have no right of review if the child is not yet a Crown Ward. Still the person has been refused and could have been a valid placement option for the child. During that time, concurrent planning is unfolding. At the same time, if a society waits to assess the application of a person who applied to adopt a child after this child is made a Crown ward and if in the meantime, according to societies’ practices, the child has already been placed with a family with the view to adopt, it places that person at a disadvantage as the child has already been involved with a family. When reviewing a refusal, the Board must consider continuity of care and the possible effect on the child of disruption of that continuity.

19When an application to adopt is made, the Society must assess it and inform the applicant of its decision. If the interpretation of the Society was correct, it would mean that a person who wishes to adopt a child, who goes through the assessment process of the home study and the PRIDE courses and is finally refused before the child is made a Crown ward would not have access to a review before the Board but a person refused after the child is made Crown ward would have that right.

20In a section 144(1) application hearing, the decision of the Board will depend on the circumstances of the case and where the applicant in question is in the adoption process. In Family Youth & Child Services of Muskoka v. D.M. and C.M., 2010 ONSC 6018 the court confirmed the authority of the Board to order the placement of a child for adoption with an applicant. However, and contrary to the position argued by the Society, the Board will not and cannot order a placement for adoption, unless the legal conditions are met. The Board does not interpret its authority to make an order in a way that would disrespect a proper application of the Act.

21The Board has the authority to confirm or rescind the society’s decision to refuse the application to adopt by deciding what action is in the best interest of the child. The Board’s remedial authority is found in section 144(11)

Board decision

(11) The Board shall, in accordance with its determination of which action is in the best interests of the child, confirm or rescind the decision under review and shall give written reasons for its decision. 2006, c. 5, s. 36.

22The Board will determine which action is in the best interest of the child and will take into consideration in making its determination the status of the child and the stage of the adoption process. In A.R. and G.B. v. CCAS of Toronto (CFSA s.144), 2007 CFSRB 14 the Board ordered the Society to finalize the home study of the applicants as it had been interrupted for reasons considered not valid after the Board had heard the evidence. In that case, the evidence had established that the applicants were a stable couple and that the Society had erred in their assessment of the applicants regarding this part of the home study.

23The Society argued that the decision of this Board in J.C. & T.B. 2011 CFSRB 2, on the same question was wrong. In fact the Board decision in that case was more in relation to the inadequacy of the notice sent to the Applicant and the inapplicability of the spirit of section 68.1(8) to a section 144 application. However, our colleagues seized of the question rightly said that: “It is not open to the Society to take issue with the jurisdiction of this Board on the basis that the child is not yet legally available for adoption (a Crown Ward) when the Society elected to begin adoption planning in advance of a Crown wardship disposition and to refuse these Applicants.” This is what the Society did in this application.

24The Society argued that the Court of Appeal decision in R.L. v. Children’s Aid Society of Niagara Region 2002 41858 (ON CA), [2002] O.J. No. 4793 confirms the interpretation that the right to a review of a society’s decision to refuse an adoption application comes to life only after the child is made available for adoption. This decision pre-dates the amendment to section 144 in 2006, introduced by Bill 210. The Court of Appeal was seized of a question not related to the authority of the Director to review a society’s decision to refuse a placement for adoption. In its decision, the Court in reviewing the statutory framework mentioned that the Director had “not surprisingly” refused to hear the request for a review of the refusal by the Society to place the children with the applicants because the children were not yet available for adoption.

25The text of section 144 at the time the Court of Appeal rendered its decision was as follows:

Review by Director

144.(1)Where,

(a) a society makes a decision refusing to place a child with a person, including a foster parent who is caring for the child, for adoption; or

(b) a society or licensee makes a decision to remove a child who has been placed with a person for adoption,

a Director may review the decision of the society or licensee and may,

(c) confirm the decision, giving written reasons for doing so; or

(d) rescind the decision and do anything further that the society or licensee may do under this Part with respect to the child's placement.

26Obviously, the new section 144(1) a) does not address the same situation. The old section 144 was creating a right to a review of the refusal to place a child for adoption when the current section 144(1) a) gives a right to a review of a refusal of the application to adopt. These are two different situations. An application to adopt occurs earlier in the process, and there is no legislative requirement that a child be made a crown ward before there can be an application to adopt. Under the current regime, rights later in the process are covered by section 144(1) b) which gives a right to a review when the child is removed from the adoption placement. The Board is not bound by this decision of the Court of Appeal on the question of whether a child must be a Crown ward for applicants to have a right to come to the Board under the current s. 144(1) a) as it is not relevant to the circumstances of the case under review.

27In conclusion, the Board has jurisdiction to hear the application. The Board proceeded to hear the merits of the application.

BACKGROUND

28The Applicants applied to be foster parents in 2009 and, following a Foster Parent Home Study, were approved by the Society. They have fostered four children, including the Child, and have transitioned three for adoption or other placement.

29The Child, born [ ] [ ], 2011, was placed with the applicants when he was two weeks old. His biological mother, who suffers from mental health issues, substance abuse, and developmental delays, was unable to look after him.

30In October 2011, when the Child was three months old, the Applicants advised the Society, with the encouragement of Society workers, that they wished to adopt the Child. Subsequently they indicated to the Society that they would also be willing to adopt his sister if she were to be available for adoption.

31In April 2012, the Society initiated an update to the Applicants’ Foster Parent Home Study for the purposes of completing an Adoption Home Study. According to the Society’s evidence, an Adoption Home Study is more rigorous than a Foster Parent Home Study, particularly in the areas of succession planning and financial stability.

32After reviewing the Applicants’ financial situation, in May 2012 the Society advised the Applicants that they would not consider them for adoption for the Child.

ANALYSIS

33In determining what action was in the child’s best interests, under section 144 of the Act, the Board took into account the over-arching considerations set out in section 1 of the Act, as follows:

1. (1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.

Other purposes

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

3. To recognize that children’s services should be provided in a manner that,

i. respects a child’s need for continuity of care and for stable relationships within a family and cultural environment,

ii. provides early assessment, planning and decision- making to achieve permanent plans for children in accordance with their best interests

34The Board was required to and did consider the relevant factors enumerated in section 136 (2) of the Act, namely:

(2) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child’s physical, mental and emotional level of development.

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

4. The child’s relationships by blood or through an adoption order.

5. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

6. Any other relevant circumstance.

35The Board heard evidence related to the issues addressed in the headings below.

The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs; the child’s physical, mental and emotional level of development

36At the Hearing, all parties agreed that the foster parents have provided excellent care to the Child. They agreed that the foster parents have successfully met the Child’s physical, mental and emotional needs. The Child is currently meeting all his milestones and is securely attached to his foster parents, their daughters and extended family and friends.

37The Society, however, expressed its view that the Applicants could not necessarily be relied upon to meet the child’s physical, mental and emotional needs in the future, because of their strained financial situation. The Society pointed to the possibility that the Child might have special needs in the future, possibly developmental or mental health difficulties, given his biological background. The Society submitted that potential stresses related to the Applicants’ lack of adequate finances might affect the Child’s mental and emotional development in the future.

38The Applicants submitted that they were prepared to meet any possible difficulties that might arise for [the Child]. They would be able to access assistance for him through the foster father’s employment benefit plan and the use of community services. The foster mother indicated that she takes available courses on relevant issues, such as autism, and would continue to do so. The Board agrees that the Applicants have provided care to the Child. The Board must assess the needs of the Child in a prospective way. Considering the evidence on the financial management of the household analyzed below, it cannot conclude that the needs of the Child will be met in the future if he is placed for adoption with the Applicants.

The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family; the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity

39The Applicants submitted that as the Child was happy and well settled with them, they could see no reason for the Society to disrupt that continuity. All their family and friends love the Child, [the Child] as they do, and feel he is a member of their family. Additionally, they noted that they have an open relationship with the Child’s biological mother, which will not occur, based on their knowledge of her, with another adoptive home. They pointed out that there is no guarantee that the Child will attach as well to another family. The Applicants do not want their relationship with the Child to change.

40[ ], Adoption Social Worker, submitted on behalf of the Society that a secure attachment with one family can lead to a secure attachment with another family. She testified that, for a two year old child with no behavioural issues, a smooth transition should be possible. She indicated that the Society is moving to a “foster with a view to adopt” model in order to minimize the number of moves for a child. She outlined the Society’s progressive process for foster parents’ involvement in a foster child’s transition to a new home, and indicated that a more rapid transition can occur, when necessary. The Society encourages foster parents to have contact with the adoptive child in his new home, wherever possible. She indicated that when possible the Society tries to place siblings together.

41The evidence has established that the Child will be able to transition to another family and that the interruption in the Child’s care should have limited impact if supervised and carried out appropriately by the Society and the next family.

The child’s relationships by blood or through an adoption order

42The Applicants testified that they have an open ongoing relationship with the Child’s biological mother which they feel is in his ongoing best interest. They noted that the Child’s mother indicated, in a letter to the Board, her wish that the Child be adopted by them.

43With regard to the child’s relationship to his sister, the Applicants reiterated their wish to adopt [the sister] as well, so that the children could grow up together.

44The Society submitted that it was currently exploring a possible kin placement for the sister, but, in any case, would be looking towards an adoptive situation for the Child that would accommodate his relationship to his biological mother and sister.

45The Society further indicated that it would not consider placing the sister with the Applicants because of its concerns related to their unstable financial situation, including concerns about their lack of space for an additional child. The Child is currently sleeping in a crib in the foster parents’ bedroom and there is no other bedroom available. The Board is of the opinion that a placement with the sister is an important consideration for the future of the Child and that it is highly unlikely that, even if the Applicants could adopt the Child, they would be able to assume the responsibility of his sister.

Any other relevant circumstance: the Applicant’s financial status and the child’s security

46The main concern brought forward by the Society at the hearing related to the Applicant foster parents’ financial status and the Child’s future security.

47The Board heard evidence that a financial assessment within an Adoption Home Study is carried out because it is known that financial concerns can cause stress and discord in a family. The Society must know that a child can be cared for until the age of eighteen. It is important that a family can afford basic expenses and can afford to raise an additional child. The Society estimates that an adoptive family requires approximately $1,000 per month to raise a child to eighteen years of age. A prospective adoptive family should be able to demonstrate that it would have this amount available at the end of each month. There is no minimum amount a family must earn, but adoptive parents must be able to demonstrate that they can manage within their income. The Society indicated that the assessment is not meant to be personal, but that there are basic benchmarks and cutoffs which must be met.

48In this case, the Society pointed to the Applicants’ ten year history of steadily increasing debt. It indicated that the Applicants have a $43,000 yearly income, excluding the Society’s payments for the foster child and the foster mother’s volunteer driving for the Society. In 2009 the Applicants reported $146,000 in liabilities, and in 2012 they reported $211,000 in liabilities. The Society noted an increase in debt of $65,000 over a three year period and a pattern of overspending over ten years. The Society noted that the family appeared to be still accumulating debt at a rate of $800 per month, and that this path would lead to bankruptcy.

49The Society submitted that it requested financial information from the Applicants in February 2012. At that time the Applicants indicated that they had undertaken a $120,000 mortgage in 2002 and that in 2012 the mortgage was now $200,000. After several meetings with the Society, the Applicants resubmitted financial information. In October 2012 they clarified that they owed not $200,000, but $162,000 on their mortgage. Additionally, they submitted monthly expenses which were $1,100 a month less than in February 2012.

50The Society noted that there were further reductions in the Applicant’s proposed budget. It noted that the budget for the family grocery bill had been reduced from $400 a month to $200 a month for four people, and that the Applicants had proposed $50 a month allowance for clothing for four people. There was no money for entertainment; the budget excluded pet supplies, although the family has two dogs and two cats; and there was no money for bowling practiced by the two daughters which amounts to $26 per week. The Society questioned the viability of this plan.

51[ ], Service Director submitted on behalf of the Society, that according to a Manitoba 2004 financial study, it would cost $12,768 a year to raise two girls. For a girl of twelve, the cost of groceries would average $131.00 and clothing $88.30 per month.

52The Society submitted that it was concerned that the Applicants’ current financial course could lead to bankruptcy. It could cause significant stresses on the family and could limit the Child’s opportunities. The Society could not agree to place a child for adoption in these circumstances.

53The Society suggested that the Applicants need more time to manage their finances and noted that if they had approached the Society as non-foster parents they would have been advised to put their finances in order and return in a few years. It noted that the Applicants’ original plan regarding the Child was to foster only, not to adopt.

54The Society explained, in response to a question from the Applicant foster mother that it does choose specific areas to focus on in its Home Study when it feels additional attention is required. The Society noted that the Applicants had not been forthcoming with financial information following the May 2012 meeting. It had been difficult to determine the actual costs and expenses of the family as the figures had shifted over time.

55In response to a question from the Applicant foster mother regarding the possibility of an adoption subsidy, the Society submitted that it does provide limited adoption subsidies but these are generally targeted for older children and sibling groups. It noted that subsidies range up to $350 per child per month; the amount will not increase over time, but might decrease. The Society submitted that it has prospective adoptive families available who are able to raise children without a subsidy. The Society is of the opinion that money coming from subsidies should not be used to pay the debts of an adoptive family as it fears would be the case for the Applicants.

56The Board heard testimony from the Applicants. The foster father testified that he works in a warehouse. His job has been stable for fourteen years, and he expects that to continue. He has never taken leave during that period. His benefits are generous and cover the children’s needs, including counselling and braces. They would cover the Child’s needs as well.

57He testified that his wife looks after the bills, his salary is deposited directly to the bank, and he is not involved in the monthly budgeting. He did not know how much their debt was.

58The foster father testified that there had been some challenges. In 2001 his wife initiated an Appeal related to denied maternity leave benefits. She was advised to wait for a Hearing and she had no wages for one year. At that time they used credit cards to meet their expenses. They experienced tax difficulties in 2003 and 2004. Since 2002, the basement of their home had been flooded three times, as had other homes on their street. Although insurance covered the first occurrence, the Applicants subsequently borrowed $21,000, using credit cards, for repairs to the basement.

59In 2008, the Applicants assumed a $15,000 loan for a truck from a finance company, at an interest rate of 25%, on the advice of a friend. They indicated that they had neglected to read the fine print on the contract. In order to extricate themselves from this loan, in 2010 they were required to pay a $10,000 penalty. The existing loan for the $15,000 truck is now $23,000.

60In February 2012, a further loan for a van was assumed in the amount of $10,000. This loan has now been paid off using a $13,000 gift from the foster father’s father.

61In 2007, the Applicants purchased a $5,000 trailer using their tax refund. They have now traded that trailer for an upgraded one.

62Both Applicants testified that since 2006 they had been in credit counseling, an undertaking they initiated on their own. In a plan to pay off their debts they consolidated their outstanding loans by refinancing and increasing their mortgage. In 2011 they renegotiated the mortgage from $120,000 adding $42,000, consisting of approximately $23,000 for the truck and $20,000 for the basement.

63In her testimony, the foster mother indicated that she is a private nanny, a volunteer driver and car seat instructor, as well as a foster parent. She noted that, on the Society’s forms she had mistakenly filled out the amount of mortgage owing to the mortgage company and that the correct figure was indeed $162,000, not $200,000. The Applicant testified that their home is now worth $220,000, an increase of $100,000 since purchase. They have a total of $249,000 in property and the mortgage is their only debt. She acknowledged that if the family required it, she could turn to her family or friends for a loan.

64The Applicants advised that they have a classic car, van and truck. They do the repairs themselves and get a discounted price for parts. They have insurance on all three vehicles. In response to a question from the Board, the foster mother advised that she would not sell the classic car which she had owned since she was seventeen years old, as her father would not allow her to do so.

65The foster mother testified that in their application to adopt the Child they had asked the Society for an adoption subsidy but were refused. She noted also that there was a government subsidy available for the adoption of siblings.

66The Applicant foster mother acknowledged that they had not previously budgeted for or tracked their expenses. They currently do not have a “rainy day” fund or significant savings. They do have paid-up life insurance. She indicated that it might look unusual that their expenses have dropped but she is a very careful shopper who takes advantage of discount coupons.

67With regard to the matter of their lack of financial disclosure to the Society, the Applicant foster mother noted that they did not provide financial information to the Society following their Application to the Board, on the advice of several organizations they contacted for advice.

68The Applicant submitted that she is making an honest effort to get back into the work force. She recently secured a position as a private nanny. The job will require 24 to 30 hours per week. The work will begin at 3:30 PM and last into the evening and include Saturdays. The job will pay $12 per hour, approximately $1,150 per month. There is also another possible opportunity for an overnight shift position which is not yet hiring.

69The Applicants clarified that their yearly vacations in [United States], were a Christmas gift from their father. [ ], the Applicant’s father, testified that he was available to assist the Applicants with any major expense, and that that would not be a financial burden for him.

70[ ], treasurer of the family’s bowling league, testified that the Applicants were always able to pay their family’s bowling fees, $13 per bowler per week, and that there are subsidies available if required. There are $3,000 - $4,000 scholarships for post secondary education. The Applicants’ children have won scholarships every year.

71The Society submitted that it had a number of concerns about the Applicants’ pattern of judgment.

72It questioned the foster mother’s earlier decision to become a volunteer driver after incurring debt, rather than to obtain a paying job.

73The Society expressed concerns regarding the Applicants’ failure to track their expenses and follow a budget. It was concerned that the Applicants had no emergency fund on which to fall back. It expressed concerns that the Applicants had purchased a home for $120,000 with a mortgage for the full amount. It was concerned about the Applicants’ choices, including the possession of three vehicles, the purchase of a $5,000 trailer in 2007 using a tax rebate which otherwise might have reduced their debt, and their acceptance of a loan with 25% interest and an ensuing $10,000 penalty.

74With regard to the foster mother’s proposed new job, the Society expressed concerns that the Applicant would be away from her own family, including the Child, after school and in the evenings. It noted that the Applicant’s own children have had challenges at school, and that it is important for the parents to be present with them in the evening hours, especially to assist with homework. It noted a significant potential stress for the family in this regard.

75The Society was concerned about other possible stresses in the foster family situation. It noted that one daughter had experienced depression and was struggling in school and the other has been diagnosed with ADHD. It suggested that the family might be at risk if further pressures were added.

76The Society noted its concern that the Applicants’ children wrote letters to the Review Board urging that the Child remain with them. The Society was concerned that this would put the children in a difficult position if the appeal were not successful. It suggested that the parents should have been preparing the children for the Child’s possible transition and that their action in having the children write letters showed poor judgment.

77In summary, the Society submitted that it had had many meetings with the Applicants and provided many opportunities to try to learn about their financial situation. They found that it was a “moving target” with a great deal of complexity. The Society acknowledged that there had been some confusion for the Applicants related to differing requests for information from Society officials.

78The Society noted that its mandate is to find the best placement for children, especially those who come from challenging circumstances. Often these children need more than an average child. The Society has to look at as many factors as possible for success. All factors are important.

79It acknowledged that the child is happy with the foster parents and that the foster parents love the child. It pointed out that, regrettably, it takes more than love to parent a child. There has to be a balance between love and positive intentions, and pragmatic choices.

80The Society submitted that its decision is related to stability and judgment. The evidence from the Applicants indicates a comfort level with financial chaos which has become chronic. There is evidence that there is not consistent planning taking place. Organization and thoughtfulness seem to be missing. Judgment and decision-making seem precarious. This does not translate into the best interests for the Child.

81The question for the Society is whether an added child should be placed with the Applicants when there might be a better place. The evidence is that there are other possible homes where [the Child] would not be faced with uncertainty. In the child’s best interest the Society’s decision is to look into a plan for stability for this child.

82The Society submitted that it is not saying that the Applicants can never adopt in future, but the Child should move now.

83In her summary, the foster mother testified that she considered the Society’s investigation to be intrusive and unfair. They have been fostering for four years and hope to continue. They have had good relationships with their workers and hope that this situation does not negatively affect their relationship with the Society.

84She submitted that they were not rich but have a fairly comfortable home. They have immediate and extended family support, emotionally and financially. With regard to succession planning, the children, including the Child, would have her sister and her brother in law as long-term guardians. She acknowledged that they have made mistakes in the past, many people do; but they love children and would do anything for them.

85The foster mother submitted that the Child’s needs are being met well. She referred again to their open relationship with the Child’s biological mother, which will not occur, based on their knowledge of her, with another adoptive home.

86The Applicants do not want their relationship with the Child, [ ] to change.

The Board’s Conclusion

87Having heard the evidence provided by the Applicants and the Society, the Board sets out its conclusion below.

88The Board finds that the foster parents have provided a loving home for [the Child] and are responsible for his well being and his firm attachment to them. The Board notes that the Society has acknowledged their success as foster parents.

89The Board finds that the Applicants have not managed their finances adequately and are not currently able to balance their income and expenditures. They have significant debt in relation to their income. They are not able to demonstrate that they have monthly funds available to support an additional child.

90The Board notes that the Applicants’ current financial situation has been tolerable only because there have been no costs for the Child, who is supported financially by the Society. Honoraria from the Society for volunteer driving have contributed to the family’s current income, although it can not be included in the calculation of income for purposes of adoption.

91The Board acknowledges that the Applicants have now recognized that they have significant debt and will require a focused effort to stabilize their financial situation. They have taken several steps to address their level of debt, including the positive step of credit counselling.

92However, the Board finds that the Applicants still require time to stabilize their financial affairs. Evidence before the Board indicated that the Applicants still do not have a monthly budget or tracking system for expenditures despite their previous difficulties. There is no emergency fund or adequate savings. From evidence presented to the Board it would appear that the Applicants would still entertain the possibility of further borrowing if they were in a difficult situation. Additionally, the foster mother’s proposed job situation presents concerns that she would be putting her own family in a position of further stress.

93As this decision must look at the best interests of the child, the Board is of the view that the Child should be given the opportunity to grow up in a home where there is financial security (not necessarily prosperity, but security), where he has every possible opportunity to develop to his fullest potential, including educational opportunities, and where there is no risk to his emotional wellbeing because of financial concerns.

94With regard to continuity and attachment, the Board heard evidence that the Child is of an age when, because of his current positive attachment, he will likely re-attach well to another family. The Board heard evidence that the Society has prospective adoptive homes available for the Child where finances are not a concern. The Society’s plan would be to move him now to such a foster home, with a view to adopt, to facilitate continuity of care.

95The Board finds that because of the lack of secure financial stability in the Applicants’ home and because he is at an age and developmental stage where he can likely re-attach to a new family, it is in [the Child’s] best interest to transition at an appropriate time to a prospective approved adoptive home.

96The Board, therefore, confirms the Society’s decision to refuse the Applicants’ adoption application for [the Child].

97The Board recognizes the importance of [the Child’s] relationship to his sister and supports the Society’s efforts to accommodate this relationship in its planning.

98The Board notes the Society’s submission that the Applicants are excellent foster parents and would be considered as potential adoptive parents in the future if their financial situation becomes stabilized.

DECISION

99For the above reasons, the Board made the following order:

1. The Board confirms the Society’s refusal of the Application of [the Applicants] to adopt the child, [ ], born [ ] [ ], 2011 pursuant to section 144 (11) of the Child and Family Services Act.