CHILD AND FAMILY SERVICES REVIEW BOARD
BETWEEN:
DK and D(F)K Applicants
-and-
Huron-Perth Children’s Aid Society Respondent
DECISION
Adjudicator: Eva Nichols, Jennifer Scott, Theresa Hughes
Indexed As: DK v Huron-Perth Children’s Aid Society (CYFSA s.109 & 192)
APPEARANCES
DK and D(F)K, Applicants
Gene C. Colman and Jennifer Kirshen, Counsel
Huron-Perth Children’s Aid Society, Respondent
Barbara Tuer, Counsel
Introduction
1These Applications were filed under sections 109 and 192 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1 (the “CYFSA”), on March 13, 2019.
2The Applicants have sought a review of the decisions of the Huron-Perth Children’s Aid Society (the “Society”) proposing to remove the foster children (the “Children” or the “foster children”) from their care and refusing their application to adopt the Children.
3A hearing was held on April 29 to May 3, 2019 in Kitchener, Ontario. On May 13, 2019, the following orders were made:
The Child and Family Services Review Board (the “CFSRB”) finds the action that is in the Children’s best interests is for the Children to remain in the Applicants’ home and for the Applicants’ adoption application to proceed to the next stage of the adoption process – the homestudy. The homestudy must be carried out expeditiously and completed by an assessor who is independent of the Society and is mutually agreed upon by the parties.
Following the completion of the homestudy, the Society is required to make a new decision on the Applicants’ adoption application. If the Society refuses their adoption application, the Applicants have the right to file a new section 192 Application with the CFSRB.
The CFSRB rescinds the decisions of the Society proposing to remove the Children from the foster care of the Applicants and refusing their adoption application.
4These are the reasons for our Decision.
the law
5The relevant provisions of the CYFSA, sections 109 and 192, are 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)
109(8) A foster parent who receives notice under clause (7)(a) may, within 10 days after receiving the notice, apply to the Board (…) for a review of the proposed removal.
109(15) The Board shall, in accordance with its determination of which action is in the best interests of the child, confirm the proposal to remove the child or direct the society not to carry out the proposed removal, and shall give written reasons for its decision.
192(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.
(2) The society or licensee who makes a decision referred to in subsection (1) shall,
(a) give at least 10 days notice in writing of the decision to the person who applied to adopt the child or with whom the child had been placed for adoption;(…)
(3) A person who received notice of a decision under subsection (2) may, within 10 days after receiving the notice, apply to the Board in accordance with the regulations for a review of the decision subject to subsection (4).
(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.
background
6These Applications relate to three foster children, JoN, JaN and KN, who have been living with the Applicants, DK and D(F)K, and whom they applied to adopt in early 2018.
7DK and D(F)K are a married couple living in a small town within the geographical area under the jurisdiction of the Society. At the start of the events covered by these Applications, the household consisted of the parents, their three adopted children and the three foster children, who are the subject of these Applications. DK is the mother and foster mother of the children and D(F)K is the father and foster father of the children.
8DK is 43 years old and D(F)K is 44 years old. They both grew up in households governed by strong religious principles within large families. They were married in 1996, when DK was 20 years old and D(F)K was 21 years old. In 2001, they moved to a developing country to work within a missionary community. Their stated purpose for this move was to understand other cultures and to offer help to other people.
9While in the developing country, they adopted two children, PK and DK. Both adoptions were in accordance with the requisite rules and procedures of that country. Their adopted children came back with them to Canada in 2008. In spite of some significant challenges, related to the health and development of those children, both these children, now adults, thrived in the care of the Applicants.
10On November 20, 2008, following their return to Canada, the Applicants applied to the Society to become resource foster parents. Their first homestudy for that purpose was accepted and approved on March 24, 2010.
11HK, the Applicants’ third child, was placed in the Applicants’ home in September 2012 and her adoption was approved in September 2014. A new and updated homestudy was approved in order to finalize the adoption of HK.
12All three adopted children thrived in the home of the Applicants. DK homeschooled their adopted children in order to accommodate their diverse and significant learning needs, which proved to be successful.
13The Applicants and the Society have had a longstanding positive working relationship. During the hearing, witnesses for the Society stated that throughout this long, co-operative working relationship between the Applicants and the Society, there had never been any issue or concern about the well-being and care of the children placed with the Applicants or conflict between the Society workers and the parents.
14JoN, JaN and KN are 7, 4 and almost 3 years old. The 7 year old has lived with the Applicants since August 2016; the 4 year old since October 2015, when he was just 10 months old; and the youngest, who is now almost 3 years old, since August 2016, when he was just two days old. Plans of Care were developed at that time for all three children and have been updated regularly for all three.
15These Plans of Care document the major gains made by the Children, while in the Applicants’ care. As far as the two younger Children are concerned, the Applicants’ home is the only home that they have ever known and the Applicants are “mom and dad” to them, the only parents that they have known. While JoN faced some significant challenges arising from his previous transitions and the neglect that he had faced prior to his apprehension by the Society, it is clear that he has made major gains while in the care of the Applicants. The Children have also participated in the home schooling offered by DK, which particularly benefitted JoN, who also has some significant learning challenges.
16In spite of the decisions that led to the current Applications, the Society has fully acknowledged the gains made by the Children in all aspects of their lives, including attachments and mental as well as physical health components. As part of the support for the Children, the Society made arrangements to provide the services of a mental health support worker from the Huron-Perth Centre for Children and Youth to the Applicants. This support was particularly helpful to DK and to the Children by extension.
17The Children also have three full siblings who are placed together in a kin placement, as well as a half-sibling, who resides with her biological father and has little connection with her six half-siblings. The Applicants have ensured that the Children have regular contact with their three full siblings, meeting them approximately every two weeks. The same kin placement was not and is not now available for the Children.
18At the beginning of 2018, the Applicants applied to the Society to explore a permanency plan for the adoption of the Children. The Society initiated a new homestudy in January 2018, in accordance with the legislated requirements. As part of this process, the Applicants supplied the Society with updated references, medical documentation and police checks. They discussed future plans for openness to ensure that the Children, after adoption, would continue to maintain the existing kin relationship with their siblings and other relatives. They expected to begin the adoption probation process during the spring or early summer of 2018.
19During the summer of 2018, the Society changed its document processing system. This led to a delay of the start of the adoption process. Using the new system (CPIN), it is documented that, as late as November 2018, the adoption process was set to begin for the Children. It was anticipated by both parties that the Children’s adoption would be finalized, in spite of the administrative delay, during the early part of 2019.
The events of October 2018
20On October 20, 2018, D(F)K reported to the Society that he had been made aware that a minor child, AM, who had been babysat by the Applicants from time to time, made an allegation that he, D(F)K, had inappropriately touched him during one or more of the times that he was at the Applicants’ home. The specific allegation referred to an overnight stay during August 2018. The allegation was communicated to the Applicants via their pastor of the church that they regularly attend.
21The Applicants were fully aware of the importance of reporting such an allegation to the Society and followed up accordingly. Prior to any investigation by the Society or by police, D(F)K voluntarily moved out of the family home and made arrangements that he would only see the Children in the presence of DK, i.e., under supervision. D(F)K vehemently denied the allegation of inappropriate touching or any other act that could be considered sexual or abuse.
22On October 23, 2018, the Ontario Provincial Police (the “OPP”) conducted interviews with all members of the Applicants’ family, with the Society’s child protection worker observing, including DK, the three adopted children and the three Children. None of these interviews provided any information that suggested verification of the allegation by AM, or any similar actions by D(F)K.
23On October 26, 2018, the OPP interviewed D(F)K, about the allegations. A Society child protection worker observed the interview. D(F)K denied the allegations of any inappropriate touching. Following this interview, the Society insisted that D(F)K could not return to the family home, but agreed to allow him to have supervised contact with the Children. These visits were for four hours at a time and could take place in the home or in the community under the supervision of DK. The Applicants fully complied with this direction.
24The Resource/Permanency Planning Worker assigned to this file by the Society stated in her evidence that at this time there was no decision made about the termination of the Applicants’ homestudy process related to the adoption of the Children.
25There have been no charges laid in relation to these allegations. There was no direct evidence given regarding this allegation at the hearing. The Society did not call the OPP officer who had been listed as a potential witness. While there were numerous references made by the Society workers to these allegations during the hearing and to the fact that the OPP had not yet closed its file on this matter, there was no evidence that the Society’s subsequent decisions, which resulted in these Applications, were directly based on these events and allegations.
26We also heard the evidence of the Applicants and noted some references in the Society’s documentation that suggested the allegations made by this child may not have been true or accurate. The allegation was not verified.
The events of November 2018
27Following the October allegations, which were not kept confidential within the Applicants’ small community, a further matter emerged in November 2018 involving D(F)K’s brother-in-law, TG. TG is the brother of DK.
28Upon hearing about the allegations involving AM, TG spoke to his father and to the pastor of his church about D(F)K inappropriately touching him when was a boy. TG believes he was 10 years old at the time. D(F)K is seven years older than TG, which would have made him 17. D(F)K believes he was 20 years old and TG was 13.
29TG described the inappropriate touching as D(F)K touching TG’s genitals over his clothing. TG does not recall any touching under his clothing. TG stated he did not know what to do about this unwanted touching, that it went on for a long time and stopped after a big struggle. D(F)K said it went on for a few months and stopped after TG pushed him away. TG told his father about the incidents about nine years ago.
30TG’s father discussed the matter with D(F)K. Following this conversation, D(F)K disclosed the matter to DK and then approached TG. TG stated D(F)K said he was sorry for what he did, that he knew it was wrong, that he was going through some issues in his life at the time, but had changed since then. D(F)K apologized to TG and his wife, and TG described it as a good apology. TG stated he did not want to pursue the matter any further, and that it felt good to get it out. He said that he and D(F)K “were good”.
31TG did not testify during the hearing. His evidence as described above was put in through a Statement of Agreed Facts.
32We accept D(F)K’s evidence about how old he was when the incidents occurred. D(F)K stated he was working when the incidents occurred and he was 20 at that time. TG would have been 13.
33Following this conversation with his brother-in-law, D(F)K disclosed the matter to the Society. DK supported this step. D(F)K stated that he would do whatever is necessary to make amends. He agreed to remain out of his home until this matter was fully resolved. He acknowledged that such inappropriate touching amounted to sexual abuse.
34D(F)K, in his evidence at the hearing, did not deny the allegations of TG. He acknowledged that these things had happened and that he had behaved wrongly towards a much younger boy. He spoke of his remorse and offered some explanation for why it might have happened.
35He described his childhood in a very large family where matters such as sex education and appropriate sexual behaviours were never discussed. He described that, growing up on a dairy farm, he was expected to work from a very young age on and that his family faced a great deal of stress, including financial problems, as well as the impact of a family suicide. He stated that while these were not justifications for his actions, they clarified, primarily for himself and for DK, why, after leaving school without a graduation diploma and going to work, he found himself in what he called “a very dark place”. He had a peer group where they all smoked and drank and often behaved inappropriately in a number of ways.
36D(F)K was asked how he viewed his conduct when he was 20. He said that because of the stressors he was experiencing and his lack of knowledge regarding appropriate boundaries, he viewed his behaviour as experimentation and did not see it as doing something against TG’s will until he pushed him off. He stated that he realizes his behaviour was highly unacceptable and it has never been repeated.
37Around the time of his marriage, he claims that he had a “conversion” experience, found God and was determined to change his life. DK has been very helpful with this. He no longer drinks or smokes, he attends church regularly, has a strong and effective support group, which includes his extended family and is committed to doing good works which began with their missionary work, but has continued since.
38In his evidence, D(F)K acknowledged that maybe he did not know at age 20 just how wrong his actions were towards TG, but he certainly knows it now. He also acknowledged that he had not disclosed any of this in his SAFE questionnaires that he had completed prior to the adoption of HK and again in preparation for the hoped for adoption of the Children. He stated that this was because it had not been something that he had thought about for over 20 years. He stated that, having made peace with God, he had put his bad times/dark period out of his mind. He also stated that when he participated in the training for foster parents and adoptive parents by the Society, he simply did not make a direct link to this matter in his past.
39D(F)K concluded his evidence with once again expressing his remorse for the past, his commitment to make amends by following all expected steps, by stating that he is prepared to do whatever is necessary to enable him and DK to put this behind them and to proceed with the adoption plan for the Children.
Next steps taken by the Society
40On November 29, 2018, the Society held a case conference regarding this matter. Following that, the Applicants were informed that D(F)K could have no further contact with the Children. He could not attend the family home, if the Children were present. The Society stated that they would have to carefully review DK’s ability to protect the Children from potential harm.
41On December 3, 2018, DK was interviewed by the Society about the acknowledged inappropriate touching between D(F)K and TG. DK stated that the disclosure came as a complete shock to her, but she stressed that her husband was a very different person then and lived a very different lifestyle. She stated that he was making poor choices at the time and he was not living the Godly life style that they adhere to now. The Society then informed DK that they could no longer proceed with the adoption and would “potentially be opening a child protection file” with respect to their adopted daughter HK.
42On December 4, 2018, the Society’s child protection worker met with DK and HK, the Applicants’ adopted children and JoN and JaN, the two older Children, who are the subjects of these Applications. PK, who is now an adult, was not living in the home any longer and KN was deemed to be too young to be questioned. Apparently, as reported by the child protection worker, none of the children expressed any concerns, reported any actions or behaviours that could give rise to a concern about D(F)K’s behaviour. There was no suggestion that the Society’s direction that D(F)K have no contact with the Children was in any way contravened.
43On December 12, 2018, Society workers interviewed D(F)K about TG’s statement. They essentially confirmed the veracity of the events that had been disclosed and which D(F)K did not deny.
44On December 17, 2018, the child protection worker and her manager met to discuss the file and to deal with the matter of verification on the basis of the Ontario Family Risk Assessment process. They verified the child protection concerns arising from the admission made by D(F)K in relation to TG. This was described as a verification of a “caregiver with a history of abusing/neglecting/exploiting a minor”. The risk level of potential harm assessed by the Society was “moderate”.
45On December 19, 2018, the Applicants met with the Society to discuss the matter. The Applicants were informed of the following decisions and recommendations:
The allegations raised in October 2018 by AM were not verified;
The allegations related to TG were verified;
The file would be transferred to ongoing services;
The adoption of the Children could not proceed;
A safety plan was to be developed for HK;
The Children could not have any contact with D(F)K, but HK could have supervised visits with her father;
D(F)K was recommended to undergo a sexual offender risk assessment and participate in counselling;
DK was recommended to participate in non-offending parent counselling.
46At the same meeting, DK was advised that she could proceed with the adoption as a single parent. DK declined that offer on the grounds that she was not prepared to abandon her marriage.
47The parties also discussed the matter of arranging some family contact opportunities, with appropriate supervision, over the holiday period. Regrettably, this did not work out and the Children had no direct contact with D(F)K over this period or since.
48The Society assigned a protection worker to the family in January 2019, who has met with DK and HK on a monthly basis. The same protection worker has met with the Applicants separately about HK on several occasions. She has no involvement with the Children who are the subjects of these Applications.
49On January 2, 2019, the family’s children’s services worker sent an email to DK, regarding the relocation of the Children to a new home. However, the Society disagreed with the Applicants that this amounted to a formal notification of their plan to remove the Children from their current placement, in accordance with section 109 of CYFSA.
50On January 22, 2019, the Society assigned a new children’s protection worker to the file, followed by a new child care worker on February 15, 2019. Neither of these new workers knew the Children or DK prior to this time.
51On March 8, 2019, two Society workers delivered a letter to the Applicants dated March 6, 2019, informing them of the Society’s decision to remove the Children from their care and of their intention to refuse the Applicants’ application to adopt the Children.
52Although at this stage the Society already knew that D(F)K had undergone the sexual offender risk assessment recommended by the Society and had begun to participate in counselling, neither of these factors were referenced in the decision letter. Further, the Society did not include any evidence of having completed a risk assessment of its own to determine the level of risk faced by the Children in the Applicants’ home.
53As part of this revised approach, the Society also discontinued, for over eight weeks, the involvement of and support provided by the previously assigned mental health worker from the Huron-Perth Mental Health Centre. This had a particularly negative impact on DK and, by extension, on the Children, who were missing their dad.
The Applicants’ follow up actions
54On January 3, 2019, D(F)K began to attend counselling with a counsellor arranged through an organization called By Peaceful Waters, that offers spiritual and therapeutic counselling. At the time of the hearing, he had participated in approximately ten sessions.
55In addition, D(F)K has continued his regular ongoing involvement with his church’s support group. The purpose of this group is to provide mutual support to members of the group and to participate in regular prayer sessions. Further, D(F)K has had regular meetings with the pastor of his church, which are not considered counselling, but are more a way of providing spiritual guidance and support.
56As recommended by the Society, D(F)K has also undergone a sexual offender psychological risk assessment carried out by an expert in this field. The assessment was carried out on February 6, 2019, and consisted of a series of tests, some of which are self-report instruments and some are examiner reports, that are used for individuals who have been charged in the criminal justice system. The overall results, evaluated and scored by an external professional, showed that D(F)K is deemed to be at low risk for sexual recidivism/reoffending.
57On the risk assessment itself, the psychologist noted that some of the test results should be viewed with extreme caution because the tests are designed for people who have been charged or convicted of sexual offences. The Society cross-examined the psychologist on this point. The difficulty that we face is this: the Society recommended that D(F)K undergo a sexual offender risk assessment and he did so. There is no evidence before us that there is a more appropriate test to assess the risk of a person in D(F)K’s situation – someone who has committed a historical offence and who has not been charged. As a result, the risk assessment that was completed for D(F)K is the only comprehensive assessment that we have regarding his risk for committing a sexual offence in the future.
58The psychologist who carried out the testing stated in his expert report that D(F)K’s motivation level for intervention and therefore prevention of future offences of a similar nature, is high, as he continues to attend spiritual counselling. He stated that the assessment failed to identify any significant areas of concern that call for a clear cut need for rehabilitative intervention, although he may benefit from gaining further self-awareness, insight and understanding of human sexuality. This expert also recommended that D(F)K should continue with counselling. He added that counselling is most likely to be meaningful to D(F)K in the context of a discipline that he identifies with, such as the spiritual counselling he is currently engaged in.
59D(F)K also willingly agreed to participate in a more intrusive physical test aimed to determine a person’s level of sexual interest and sexual arousal, which is designed to assist with determining someone’s sexual interests, treatment needs and risk level. While the results of this test proved to be inconclusive, coupled with the psychological risk assessment at the low level, as described above, the expert’s opinion was that the overall risk assessment for this individual in terms of ongoing concern is low. There was no contradictory evidence tabled by the Society.
60The Applicants also developed, in co-operation with their counsel, a safety plan, which they proposed to the Society. This was submitted to the Society on February 11, 2019, and focused on managing the circumstances until such time that the Society’s concerns about risks to the Children could potentially be alleviated.
61So far, DK has not participated in non-offending parenting counselling, but has expressed her willingness to do so. She stated that currently, as a single parent, caring for all the children in her care, providing home schooling and attending church, as well as preparing for this hearing, she has had limited time to dedicate to any additional activities, such as counselling. Similarly, D(F)K stated that he is prepared to pursue further, more intensive therapeutic counselling, if that is the way to reach an agreement with the Society, and in the best interests of all the children in his home. Both Applicants stressed that they are prepared to do whatever it takes to enable them to return to being a family under the same roof, with the Children remaining with them and eventually adopted by them.
62D(F)K has been away from the family home since October 2018 and the Children have been negatively impacted by his absence. DK stated JoN is more aggressive, has “meltdowns” and is having difficulty with schooling. JaN is hyper-vigilant and more reliant on DK. KN talks about D(F)K all the time. DK stated the Children are not sleeping well and their eating habits are off. DK described the home as chaotic, with heightened aggression and challenges for all of the family to navigate.
ANALYSIS
63There is no issue in this case about our jurisdiction to hear these Applications. The Children have been in the foster care of the Applicants continuously for more than two years and as such, we have jurisdiction to review the Society’s decision to remove the Children from the Applicants’ foster care under section 109 of the CYFSA. There is also no dispute that we have jurisdiction to review the Society’s decision to refuse the Applicants’ application to adopt, under section 192 of the CYFSA. The Children are available for adoption, an adoption application has been made by the Applicants and it has been refused by the Society.
64In coming to our decision, we have addressed the two Applications together. We appreciate that there are different nuances and outcomes to these sections of the CYFSA but the primary concern for each is: what action is in the best interests of the Children? For foster placement, the question is whether it is in the Children’s best interests to remain in the foster care of the Applicants. For adoption application refusal, the question is whether the adoption application is in the Children’s best interests. Because the Applicants are foster parents who want to adopt their foster children, the ultimate question in this case is whether it is in the Children’s best interests that the Applicants continue to be considered as their permanency plan. (See Applicants v. Children’s Aid Society of Hamilton, 2014 CFSRB 48)
65In Family Youth & Child Services of Muskoka v. D.M. and C.M., 2010 ONSC 6018 (“Muskoka”), the Divisional Court described the approach to considering a section 192 application (formerly section 144), as follows (at paras. 20-22):
In this case, the pertinent provision is s. 144(11) of the CFSA, which states: "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".
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.
The Board does not have parens patriae jurisdiction to determine best interests in relation to any action. Rather, its determination is confined to the parameters of s. 144. Put simply, the Board must determine whether the adoption application or placement is in the child's best interests having regard to the criteria set out in s. 136(2). If the adoption application or placement is in the child's best interests, the Board will rescind the Society's refusal decision. If it is not, the children's aid society's decision will be confirmed.
66If we decide that the adoption application is in the Children’s best interests, all of the steps in the adoption must still be completed before the Applicants can adopt the Children. This includes an updated SAFE homestudy and placing the Children on adoption probation for a minimum of six months, unless waived by the Society. The Children may be removed at any time during the probationary period, subject to a further right of review by the CFSRB under subsection 192(1)(b) of the CYFSA. Following completion of the adoption steps, the Applicants must then apply to the Court to adopt the Children. If the Society believes the adoption is not in the Children’s best interests, it can indicate that in the director’s statement filed with the Court. As the Court confirmed in Muskoka, the ultimate adoption decision is within the exclusive jurisdiction of the Court (para. 42).
67In exercising jurisdiction under section 192, we are making a substantive decision regarding the future of these Children. In doing so, the CYFSA directs that we take into account any of the specifically enumerated best interest factors which are relevant under section 179(2):
(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,
(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child’s physical, mental and emotional level of development,
(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child’s cultural and linguistic heritage,
(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,
(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,
(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, and
(viii) the effects on the child of delay in the disposition of the case.
68As well, we want to highlight that the hearing is focused on one particular aspect, as defined in excerpts from the opening paragraphs of the CYFSA at Section 1:
1(1) The paramount purpose of this Act is to promote the best interests, protection and well-being of children.
(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are to recognize the following:
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.
Services to children and young persons should be provided in a manner that,
i. respects a child’s or young person’s need for continuity of care and for stable relationships within a family and cultural environment,
ii. takes into account physical, emotional, spiritual, mental and developmental needs and differences among children,
v. provides early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests, and
vi. includes the participation of a child or young person, the child’s or young person’s parents and relatives and the members of the child’s or young person’s extended family and community, where appropriate.
The Children’s best interests
69We did not meet the Children. All three of them are very young and therefore, it would have been difficult, if not impossible, to invite them to share their wishes and views directly. All witnesses at the hearing, including the Applicants, the workers from the Society who actually know the Children and the mental health worker from the Huron-Perth Mental Health Centre commented favourably on the Children’s experiences as foster children in the care of the Applicants. The Plans of Care introduced into evidence by the Society demonstrate clearly that the Children have had their physical, mental and emotional needs met in the home of the Applicants and they have been receiving appropriate care and treatment, as needed, to meet their needs.
70The evidence of the witnesses, both from the Society and of PK, the Applicants’ oldest child, provided positive evidence about the level of care, security and support that the Children have been experiencing in the care of the Applicants. It was clear that the Society’s intentions to remove the children from the care of the Applicants and the denial of the proposed adoption was not linked to any concern about the level of care and support in the home.
71The Society stressed that there was no dispute that the Children’s needs have been well met, that they have had and still have a positive relationship with the Applicants, in their capacity as parents. The Children have thrived in the care of the Applicants.
72There are no concerns or issues about the Children’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, creed or any other matter raised for consideration in section 179(2)(c)(iii) of the CYFSA. There are no Indigenous connections to consider in this case under section 179(2)(b).
73The Children, who are full siblings, are close to one another and have been together since they arrived in the Applicants’ care. At the same time, the Applicants have also ensured that they have regular contact with their other three full siblings and members of the extended family who have those children in their care. The Applicants have stated that they are committed to maintaining such kin connections after adoption.
74In spite of the circumstances that led to these Applications, the children have always been well cared for and well protected. There was no evidence to suggest otherwise. We accept that the Applicants’ actions, including the filing of these Applications, are reflective of their commitment to the continued best interests of the Children.
The importance of continuity for the Children’s care and the potential negative impact of disruption of that continuity
75Section 1 of the CYFSA addresses the importance of continuity of care and stable relationships for children. Given the length of time that the Children have lived in the home of the Applicants, which for one of them is from birth and for another one from 10 months of age, there is no doubt that for these Children, the Applicants’ home is home and the Applicants are essentially the only parents that they have known.
76The fact that the Society offered to DK the option of proceeding with the adoption of the Children, as a single parent, reinforces the Society’s recognition and acceptance of the importance and benefits of continuity of care for the Children.
77Although neither party introduced any expert evidence on the matter of attachment and the potential significant harm of breaking the current attachment of the Children to the Applicants, we heard the evidence of the mental health worker, who has been supporting DK, and indirectly the Children, for the past two years prior to the discontinuation of that support by the Society. The counselling has now been resumed with a focus on helping DK to cope with the circumstances of the separation within the family.
78This evidence supports the very high importance of maintaining existing attachments, if at all possible. It confirms that, while children can and do move from one attachment to another, breaking the attachment bond has a significant price, especially for very young children, such as these. The Plans of Care demonstrate that the oldest of the three Children, who has already had two attachment breaks in his short life prior to coming to live with the Applicants, has had some difficulty in overcoming the early trauma arising from these moves. He is now much better settled, but shows the continuing effects of discontinuity, compared to his siblings. Another break would potentially be particularly harmful to him.
79An attachment break will also be difficult for the younger siblings. The mental health worker testified that in her view, the younger a child is, the greater the impact of the break. She testified that JaN, in particular, is at a critical point in his brain development given his age. The stress resulting from an attachment break with the Applicants will negatively impact his development. The mental health worker expressed the view that moving the Children from the Applicants’ home will be difficult for all them given the length of time that they have lived with the Applicants, their age and their developmental stage. Although not an expert in attachment, she is clearly very knowledgeable in this area given the specialized nature of the clinical services that she provides to foster parents and children in care.
80For these reasons, we feel that the relocation of the Children cannot be in their best interests.
The importance of permanency
81The CYFSA stresses the importance of permanency planning for all children who are in foster care. The Applicants have understood this and have applied to become adoptive parents to the Children, instead of continuing as foster parents. We of course support the importance of permanency planning for foster children.
82The Society stressed that because of this requirement, they had no option but to proceed as they have done. Given the circumstances, they could not approve the Applicants’ adoption application and therefore, had no option but to plan to move the Children elsewhere.
83There were general references to the fact that there are other options for the Children to be placed with another family and to proceed to a future adoption. But there was no specific evidence to confirm that such a placement has actually been explored and found or that it would enable the Children to move and continue to live together, to have access to their other siblings and extended family, and to be supported in a seamless way to achieve permanence. We find that the anticipated harm to the Children arising from their removal from the Applicants’ home at this time to a different location, where they may or may not be together, is too uncertain at this stage and cannot be seen as being in the Children’s best interests.
The matter of risk and protection
84The Children’s adoption process was on track for adoption probation in 2018. It would likely have proceeded to that stage, had it not been for the changes in administrative processes at the Society. However, once the initial allegation of “inappropriate touching” or sexual abuse was made by AM against D(F)K, the process was halted. The Society had no option but to investigate the matter.
85It is important to note that the Applicants themselves reported the matter to the Society, in accordance with their obligations as foster parents. D(F)K immediately moved out of the family home and only saw the Children thereafter when supervised. Further, he categorically denies the allegations made by the child AM.
86The Society did not verify the allegations by AM. After its verification decision, it proceeded with the Applicants’ adoption application. The Society did not rely on the allegations of AM when it decided to remove the Children from the Applicants’ foster home and when it refused their adoption application. There is no basis, therefore, to consider the allegations of AM when assessing the risk to the Children in remaining in the Applicant’s home and proceeding with their adoption application.
87D(F)K also reported to the Society the matter of the historical events of inappropriate behaviour with TG. Once the Society was made aware of these, it put the adoption process on hold. The incidents with TG have been verified by D(F)K’s own admission. Although it occurred more than 20 years ago, it is significant and therefore, called for action on the part of both parties.
88The Society recommended that D(F)K undergo a sexual offender risk assessment and initiate treatment/counselling. It directed that he could not move back into his home or have unsupervised access with the Children or his daughter, HK, until he engaged in the assessment/treatment process and feedback is received by the Society from the providers. As stated previously, these steps were immediately initiated by D(F)K, starting in early January, 2019. The result of this assessment indicated that he is at a low risk for reoffending. The counselling that he has undertaken has been both therapeutic and spiritual, which, according to the expert witness, is appropriate in his circumstances.
89The Society did not call any direct or comprehensive risk assessment evidence. When directly requested by the panel at the hearing, the Society presented a chart using the Ontario Family Risk Assessment, which demonstrated that the Applicants scored on the moderate risk range based on a score of 2 out of 16 for neglect and 3 out of 18 for abuse.
90Without in any way dismissing or even minimizing the Society’s legitimate concerns that the disclosure of the historical abuse incidents had to lead to an exploration of risk and a consideration of the safety of the Children prior to adoption, we are not fully satisfied that the above scoring amounts to a comprehensive risk assessment.
91Similarly, the Eligibility Spectrum Code, completed by the Society stated that “the caregiver has a history of abusing/neglecting/exploiting children” and “that there have been no changes in precipitating circumstances”, in spite of the fact that D(F)K’s life has changed significantly since the incidents occurred 23 years ago. More recently, D(F)K has followed the Society’s recommendations for assessment and counselling.
Conclusion
92We note and are encouraged by the steps D(F)K has taken since the historical incidents became known to the Society. He has remained out of the home, has pursued therapeutic counselling, has undertaken a sexual offender risk assessment, and has abided by the very stringent condition imposed by the Society that he have no access to the Children for the past six months. During this time, DK has cared for the Children on her own, under very stressful conditions. DK and D(F)K have indicated a willingness to participate in further counselling. In our view, they have acted in this way because of their profound commitment to these Children.
93There is no evidence that the incidents that occurred 23 years ago have been repeated. The evidence before us shows that D(F)K has changed considerably from the person he was. We heard a great deal about the facts of D(F)K’s changed lifestyle and attitudes since the time of the acknowledged abuse. Incidents, which occurred more than 23 years ago and were admitted to and compensated for to the extent possible through an apology and counselling, cannot be given the same weight as recent or ongoing incidents. Further, we take into account the significance of the Society’s own SAFE practice value that states that “families and individuals have the capacity to change”.
94In spite of that statement, we recognize the Society’s obligations to weigh any potential risks to the Children. We cannot categorically state that there is zero risk to the Children, in light of the admitted historical abuse. However we accept that, with ongoing counselling for both the Applicants and regular positive support by the Society, the risk of future abuse is low.
95In comparison, removing the Children from their home and denying the adoption application by the parents that they know and love, is definitely a very high risk approach. The Children would have to deal, perhaps for a very long time, with the impact of broken attachments and with coming to terms with the fact that they have lost the only family that they have known. They would, of course, be told that what happened was not their fault, but that would not eliminate, or even reduce, the potential impact of breaking their bonds with the Applicants and the other children of the family. Our Decision reflects the fact that we believe that this almost certain risk of harm outweighs the much lower risk of potential harm that the Society is concerned about.
96It is for these reasons that we rescind the Society’s decision to remove the Children from the Applicants’ home under section 109 of the CYFSA and the Society’s decision to refuse their application to adopt the Children under section 192 of the CYFSA. We have ordered the Children to remain in the Applicants’ home and to proceed with the next step of the adoption process – the homestudy.
97The homestudy must be completed expeditiously by an assessor who is independent of the Society. This is to ensure that it is not influenced unduly by the litigation between the parties and focuses on the only important matter for a homestudy, namely the best interests of the Children. In the event the Society refuses the Applicants’ application to adopt the Children following the homestudy, they can file a new application to the CFSRB.
98The question then remains as to what happens pending completion of the homestudy. D(F)K remains out of the home. We recommend that D(F)K be allowed immediate access to the Children, with appropriate supervision, as necessary. The terms and nature of the supervision must be agreed upon by the parties. Supervised access should be for a relatively short period of time. It would be contrary to the findings in this Decision to continue to keep this family apart indefinitely and is certainly contrary to the best interests of the Children who have been negatively impacted by D(F)K’s absence.
99We also recommend that DK and D(F)K participate in appropriate counselling. The type of counselling should be agreed upon by the parties. During the hearing, the Society suggested that offender and non-offender counselling would be appropriate. DK and D(F)K expressed their willingness to engage in this counselling. From the recent correspondence filed with the CFSRB, it appears that this counselling has already commenced.
100We recognize that the final adoption decision will be made by the Court, following a new and revised homestudy and adoption placement. If the Society believes the adoption is not in the Children’s best interests, it can indicate that in the director’s statement filed with the Court.
ORDER
101We rescind the decisions of the Society proposing to remove the Children from the foster care of the Applicants and refusing their adoption application.
CONFIDENTIALITY ORDER
102Pursuant 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, or for the purposes set out in paragraph 103 below.
103We authorize the use of this Decision in the homestudy process and in any adoption proceedings involving the Children.
Dated at Toronto, May 30, 2019.
Eva Nichols
Eva Nichols
Member
Jennifer Scott
Jennifer Scott
Associate Chair
Theresa Hughes
Theresa Hughes
Member