PD and DD v Children's Aid Society of the District of Thunder Bay, 2019 CFSRB 67

CHILD AND FAMILY SERVICES REVIEW BOARD

AMENDED DECISION

BETWEEN:

PD and DD Applicants

-and-

Children's Aid Society of the District of Thunder Bay Respondent

-and-

DT and MT Added Parties

DECISION

Adjudicator: Catherine Bickley, Gail Gonda, Daniel McSweeney Date: October 30, 2019 Citation: 2019 CFSRB 67 Indexed As: PD and DD v Children's Aid Society of the District of Thunder Bay (CYFSA s.109 & 192)

APPEARANCES

PD and DD, Applicants Kimberly Costa, Counsel

Children's Aid Society of the District of Thunder Bay. Respondent Mary Catherine Chambers, Counsel Katie Akey, Student-at-Law

DT and MT, Added Parties Margaret Waddington, Counsel Shannon Darby, Student-at-Law

Introduction

1This is an Application filed on March 7, 2019 under section 109 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1, (the "Act"). On the same date, the Applicants also filed an application under section 192 of the Act.

2The Applicants are the Child's foster mother and foster father. Under s.109 of the Act, they are seeking a review of the decision of the Respondent to remove the Child from their foster home. Under section 192 of the Act, the Applicants seek a review of the decision of the Children's Aid Society of the District of Thunder Bay (the "Respondent") to refuse their application to adopt JO (the "Child"), born on [...], 2015.

3The issue before the Child and Family Services Review Board (the "CFSRB") is whether the decision of the Respondent to remove the Child from the Applicants' home and to refuse the Applicants' application to adopt the Child is to be confirmed or rescinded after consideration of the best interests of the Child.

4Procedural matters were heard on March 18, April 8, May 27 and June 11, 2019. The hearing on the merits proceeded on June 17, 18, 19, 20, 21, 2019; July 15 and 16, 2019; and August 13, 14, 15, 16, 22 and 26, 2019.

5We have concluded that it is in the Child's best interests to maintain the relationship and emotional ties she has with the Applicants, maintain her secure place within the family and ensure continuity in her upbringing. As a result, the CFSRB issued an order on October 4, 2019 directing that the Respondent not carry out the proposed removal of the Child from the Applicants' home and rescinding the Respondent's decision to refuse the Applicants' application to adopt the Child. Furthermore, the Respondent, in the same order, was directed to proceed with the Applicants' adoption application. These are our reasons for that order.

THE LAW

6In this application the CFSRB must determine if the Respondent's decision to remove the Child from the Applicants' home and refuse the Applicant's application to adopt the Child is in the Child's best interest. To make the decision the CFSRB must consider the over-arching considerations set out in the Preamble to the Act, Part 1 of the Act and the relevant enumerated factors in sections 74(3) and 179(2) of the Act. These are set out below and constitute the requirements for the CFSRB under the Act to be considered in rendering its decision in this matter.

Preamble

The Government of Ontario is committed to the following principles:

Services provided to children and families should be child-centred.

Children and families have better outcomes when services build on their strengths. Prevention services, early intervention services and community support services build on a family's strengths and are invaluable in reducing the need for more disruptive services and interventions.

Services provided to children and families should respect their diversity and the principle of inclusion, consistent with the Human Rights Code and the Canadian Charter of Rights and Freedoms.

Systemic racism and the barriers it creates for children and families receiving services must continue to be addressed. All children should have the opportunity to meet their full potential. Awareness of systemic biases and racism and the need to address these barriers should inform the delivery of all services for children and families.

Services to children and families should, wherever possible, help maintain connections to their communities.

In furtherance of these principles, the Government of Ontario acknowledges that the aim of the Child, Youth and Family Services Act, 2017 is to be consistent with and build upon the principles expressed in the United Nations Convention on the Rights of the Child including those outlined above as well as the following as set out

in Article 20.3 of the Convention on the Rights of the Child, namely:

...... when considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background.

Paramount purpose and other purposes

Paramount purpose

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 to recognize the following:

1. While parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

2. 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.

3. 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 and young persons,

iii. takes into account a child's or young person's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

iv. takes into account a child's or young person's cultural and linguistic needs

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.

4. Services to children and young persons and their families should be provided in a manner that respects regional differences, wherever possible.

5. Services to children and young persons and their families should be provided in a manner that builds on the strengths of the families, wherever possible.

7In addition, the CFSRB must consider the relevant best interests of the Child as set out in Part V, s.74(3) and Part VII, s.179(2) of the Act and specifically the following under s.74(3)(c) and s.179(2)(c):

i) the child's physical, mental and emotional needs, and the appropriate care of 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 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

8The Panel was guided in its decision making by the over-arching principles that services for children and decisions related to them should be child-centred, least disruptive and ensure continuity in their upbringing with due regard to the child's ethnic, religious, cultural and linguistic background. Consistent with these principles, and more specifically, sections.74(3)(c)(i) through (vii) and 179(2)(c) (i ) through (vii) were considered to be the most relevant statutory considerations in this matter. Each of these best interests factors will be considered in the following sections.

BACKGROUND

9The Applicants are the Child's foster parents. They have had the Child in their care since [...], 2015 when she was three days old. The Child has remained in their care until the present time for a total of a little over four years. The Applicants have been resource parents serving in the role of foster parents for the Respondent for the last 13 years. They have served as foster parents for the Respondent in approximately 20 cases and for a total of 30 cases including private placements. These placements have been both short and long term. The Applicants have four biological adult children, and a total of five grand-children and step grand-children.

10The Respondent asked the Applicants whether they wished to put forward a plan to adopt the Child on or about July 4, 2016. The Applicants submitted a plan to the Respondent to adopt the Child on September 20, 2016 and the Respondent gave its oral approval of their plan on May 12, 2017.

11The Child has a half-sister, LT, who was in the foster care of the Applicants for a short period of time before she was placed in the home of the Added Parties ("the Other Family") for adoption in March 2015. LT is about a year and a half older than the Child. The Child and LT have the same biological mother. The Other Family learned that the biological mother was pregnant with the Child and expressed an interest in adopting the Child to the Respondent on more than one occasion and confirmed their interest in a voicemail message dated July 31, 2015. They did not submit a formal adoption plan to the Respondent at the time. Their home was not an approved foster home at the time of the birth of the Child and she could not be placed with them. In addition, LT had recently been placed with them for adoption and the placement had not yet been finalized. A decision was made to place the Child in the temporary care of the Applicants who were an approved foster home. However, the view of the biological mother and the Respondent, should the biological mother not ultimately be able to care for the Child, was to place the Child with the Other Family so that she would be with her half-sister.

12The Respondent's priority was to continue to work toward reunification but its plans to reunite the Child with her biological mother were not successful. The Respondent was aware that the biological father wanted to submit a permanency plan and the need to take this into account also delayed the Respondent from moving forward with a permanency plan for the Child. In May 2017, the biological mother agreed to an openness plan in support of the Respondent's application for Crown Wardship, now referred to as Extended Society Care under the Act, with the understanding that the Child would remain with the Applicants.

13The Respondent informed the Other Family of its decision to place the Child with the Applicants in a meeting held on May 16, 2017. On May 19, 2017 the Other Family filed an application with the CFSRB under s.144 of Child and Family Services Act which preceded and was replaced by s.192 of the Act alleging that the Respondent had refused their application to adopt the Child. On July 5, 2017 the Respondent informed the Applicants that the plan to move forward on their approved adoption plan was being placed on hold given the Other Family's interest in adopting the Child and also in light of the fact that the Respondent continued to pursue reunification and had a trial date scheduled for October 2017. The Respondent initiated an alternative dispute resolution process to engage the Applicants, the Other Family and the biological mother in order to resolve the matter. The Child was made a Crown Ward without access on October 10, 2017. The decision regarding permanency remained outstanding at that time.

14The effort to resolve the matter of permanency for the Child through mediation was not successful and the mediator submitted a final report to that effect on July 11, 2018. The Respondent engaged two professionals to undertake an Adoption Needs Assessment ("ANA") to provide recommendations regarding the placement of the Child with either the Applicants or the Other Family. The Applicants and the Other Family were informed in writing on July 18, 2018 of the purpose of the ANA and the process to be undertaken.

15The purpose of the ANA was to evaluate the risks and benefits associated with the two plans for the Child presented to the Respondent by the Applicants and the Other Family. The evaluation focused on: the Child's current and future needs and level of functioning; the Child's level of attachment with the Applicants and the risks/benefits associated with a move; whether the Child's placement with the Applicants met the guidelines under the Act having to do with considerations of race, culture, ancestry, connection to community and related factors; what the benefit to the Child would be of growing up in the home of the Other Family in which LT, one of her half sisters, resided; and, what would be the optimal level and type of openness between the Child and either family, given the outcome, and the Child's two siblings and her biological mother.

16The ANA process was conducted throughout the fall and winter of 2018/2019, the results were shared with both families by the assessors on February 15, 2019 and the final ANA report dated March 11, 2019 was shared with the parties. The recommendation based on the ANA was that the Child be placed for adoption with the Other Family. The Respondent accepted the recommendation and communicated its decision in writing to the Applicants on February 20, 2019, which the Applicants received on February 26, 2019. and by phone to the Other Family the previous day. The Applicants submitted their application to the CFSRB for a review of the Respondent's decision to remove the Child from their care and refuse their application to adopt the Child under s.109 and s.192 of the Act on March 7, 2019.

17During the course of the ANA, visits between the Child and LT were initiated. The first visit between the children took place on February 6, 2018. At first these visits occurred every three weeks and were supervised by the Respondent. Starting in August 2018, the Applicants and the Other Family managed the visits on their own once a week. These visits took place in the community and continued until February 2019. However, starting in April 2019, the visits returned to being supervised by the Respondent once a week for one hour and continue to the present.

18The Applicants and the Other Family were assessed by the Respondent as a potential adoptive placement for the Child based on standard measures and requirements used by the Respondent. These measures and requirements included the Structured Analysis Family Evaluation Home Study questionnaire referred to as SAFE Home Study and Parent Resource for Information Development and Education training referred to as PRIDE training. The standard practice across child welfare agencies in the province of Ontario such as the Respondent for assessing and approving prospective adoptive parents, foster parents and kinship care homes is by means of the SAFE Home Study and the completion of PRIDE training. In the experience of the CFSRB, this is the standard across child welfare agencies in Ontario as mandated by the Ontario Association of Children's Aid Society ("OACAS"). The ANA mentioned earlier is not standard practice used for adoption placement decision-making.

The Child

19The Child was born on [...], 2015. She was placed with the Applicants when she was three days old and remains in their care to the present time. At the time of this decision, she was a little over four years old.

20The Child has been continuously part of the Applicants' family virtually all of her life. The only parents she has known in her day to day experience are the Applicants. The Applicants' youngest son lived with the Child throughout her life although he will be moving out on his own in the near future. The Child has ongoing and regular contact with the Applicants' other adult children and their partners as well as their children.

21The Child has two half-sisters. LT is her older sister by about a year and a half. LT is the adopted daughter of the Other Family. JO is her younger sister who was born in [...] 2017; JO is in the care of the Child's biological mother. All three children, i.e., the Child, LT and JO, share the same biological mother. The Child has had contact with LT by means of visits that were initiated in February 2018 and which continue on a weekly basis for one hour. She has also had contact with JO on a regular basis by means of video chats, phone calls and a number of in person visits. The Child has regular phone contact with her biological mother as well as video chats. There is also regular contact between the Applicants, especially the foster mother, and the Child's biological mother. These contacts include phone calls, emails, video chats and sharing of photos. There have been a number of in person contacts as well between the Child and her biological mother as well as between the Applicants and the biological mother.

22The Child was identified at an early age as being delayed in a range of areas of functioning including feeding, speech and language development, movement and balance, and overall cognitive development. She was referred for and has been receiving a range of services to address her deficits in all of the identified areas. These services continue to the present day and into the foreseeable future. In addition, the Child has been identified as being at risk for Fetal Alcohol Spectrum Disorder ("FASD") based on prenatal alcohol exposure, her current presentation and delays, and the presence of facial markers associated with FASD. She has been referred for an assessment and final diagnosis of FASD. However, a definitive diagnosis based on a full assessment cannot be made before she is six years old. It is highly likely that she will receive a diagnosis of FASD. It is also highly likely that she will need supports over her lifetime given her identified deficits.

23The Child is biracial. Her biological mother is half Black of Jamaican heritage and half White of Finnish heritage. Her biological father's race and ancestry are unknown. The Applicants are White. The foster father is of Swedish ancestry. The Other Family is mixed race, the father (DT) is Black of Grenadian heritage, the mother (MT) is White of Finnish and Scottish heritage and their daughter LT, the Child's half-sister, is biracial. The Child's other half sister, JO, is also biracial.

PROCEDURAL ISSUES

24A number of directions were given to the parties throughout the course of the proceedings. In each instance, the CFSRB ("the Panel") agreed to provide reasons for any direction in the decision on the merits at the request of a party. The Other Family requested reasons for the direction given on June 24, 2019 with regard to calling Dr. Milton Blake as an expert witness at the request of the Applicants. Dr. Blake is a clinical psychologist who was engaged by the Applicants to undertake an assessment on the question of attachment. The request was granted and the Panel specified the scope of the issues to be addressed in Dr. Blake's testimony.

25The Panel agreed to grant the request to call Dr. Blake in order to hear from an expert on the issue of attachment since it was considered to be an important issue. The Panel also agreed to grant the request out of fairness to the Applicants. The Panel concluded that allowing time for Dr. Blake to prepare his assessment and report and provide testimony would not unreasonably delay the proceedings.

26Dr. Fred Schmidt, another psychologist, who conducted the ANA was engaged by the Respondent to undertake an assessment of both families on issues of interest to the Respondent and testified at the proceedings as an expert witness. Dr. Schmidt's testimony touched on the issue of attachment in his report but did not examine it in depth.

ANALYSIS

27The issue for the Panel in this matter is whether it is in the best interests of the Child to confirm the Respondent's decision to remove the Child from the Applicants' home and refuse the Applicants' plan to adopt her. The following sections present an analysis of the evidence presented by the parties as it relates to the requirements to be considered by the Panel in deciding the matter. These requirements, as mentioned in earlier paragraphs, flow from the over-arching considerations set out in the Preamble to the Act, Part 1 of the Act, and sections 74(3)(c) (i) through (vii) and 179(2) (c) (i) through (vii) of the Act.

28The Panel also heard evidence from the parties that focused on matters that were not pertinent to the considerations outlined in the relevant sections of the Act as they relate specifically to the Child. These matters were generally reflective of a conflictual relationship among the parties that had developed over time and that was exacerbated by the protracted nature of the outstanding decision regarding a permanency plan for the Child. The parties had to be given direction on more than one occasion during the proceedings to focus their evidence on the Child and her best interests. The Panel considered only evidence that was relevant to the Child and her best interests. The Panel concluded that both the Applicants and the Other Family met the standard requirements set by the Respondent in being an approved prospective adoptive home for the Child.

29The Office of the Children's Lawyer ("the OCL") participated in the mediation with the parties that took place in July 2018. A copy of the ANA was sent to the OCL. The OCL supported the recommendation made by the assessors to place the Child with the Other Family. However, no reasons for its support of the recommendation were provided. The OCL did not participate in these proceedings and the position of the OCL has been given minimal weight in this decision.

The Child's physical and mental needs and level of development

30Sections 74(3)(c)(i) and (ii) and 179(2) (c) i and ii of the Act require that consideration be given to a child's physical, mental and emotional needs and level of development in making decisions. The following paragraphs are focused on the physical and mental needs of the Child and her level of development. The Child's emotional needs and level of development will be addressed separately in the following section.

31The Panel received evidence about the needs and level of development of the Child from a range of service providers including CM, the Child's worker from the Respondent agency, and the Applicants. The Child has been identified as having global developmental delays. She was assessed in 2016 at a local children's centre in the infant growth and development clinic and was identified as needing monitoring in the areas of gross motor, fine motor, and communication skills and scoring at risk for cognitive functioning. As a result, recommendations were made for a range of services that included physiotherapy, occupational therapy and speech and language services. Subsequent visits identified feeding as an area to be explored and specific recommendations were made in November 2017 relating to feeding issues.

32The Child was referred by the Respondent to another local children's centre in January 2018 for a developmental assessment in preparation for her adoption. The Child was identified as delayed in her development and would benefit from "on-going therapeutic intervention in terms of both her communication and motor skills". It was also recommended at that time that consideration be given to having the Child referred to a FASD program because of her prenatal exposure to alcohol. A progress review was completed in March 2019 and identified the Child's areas of functioning that continued to require services and supports as global development delay, social functioning, communication and motor skills and noted gains that the Child had made.

33In a letter dated May 21, 2019, the Child's pediatrician noted her "global developmental delay, possible genetic syndrome not yet diagnosed and possible FASD". He went on to state that "... She (the Child) presents with a number of features of FASD including inability to sustain focused attention, lack of stranger anxiety, poor danger awareness and represents a flight risk in a school setting". The family physician, who had seen the Child in her office on eight occasions, also noted in her letter dated March 21, 2019 that the Child had multiple medical conditions and listed the range of services she had been receiving including physiotherapy, occupational therapy, speech therapy, and chiropractic services among others.

34The service providers mentioned in the previous paragraphs all referred to the possibility of the Child having FASD. The Panel heard testimony from Maureen Parkes, the FASD Coordinator at a community health centre, one of 14 diagnostic testing centres in Ontario, to which the Child had been referred. Ms. Parkes stated that, based on an initial consultation in July 2018, the Child met a number of the criteria established most recently in diagnosing FASD and therefore, the Child is at risk for FASD. These include the Child's exposure to alcohol prenatally, her facial measurements and behavioural indicators such as deficits in her motor and language skills, cognitive functioning and attention deficits among others. Ms. Parkes confirmed that the usual process is to undertake a full neuropsychological assessment at around age six in order to make a final diagnosis and to monitor a child until that time. Ms. Parkes also noted that children at risk for FASD and/or who have received the diagnosis require "life-long management because of having a brain that works differently".

35The evidence of CM, the Child's worker and the foster mother were consistent with the reports from service providers with regard to the range of services being provided to meet the Child's identified needs. The foster mother's timeline confirmed that the Child received the following services:

• services from an infant growth and development clinic at a local children's centre starting in or about June 2016;
• Kindermusik starting in October 2016;
• services to address eating and speech starting in August 2017;
• services to address mobility in September 2017;
• chiropractic services as of January 2018, and
• services to address her cognitive developmental needs at another local children's centre in July 2018.

36The Child's pediatrician and Ms. Parkes underscored the importance for the Child of routines and consistency of those routines in the Child's schedule. This was particularly emphasized in Ms. Parkes' testimony in light of the Child being at risk for FASD. The foster mother testified to the kind of structure and routines that the Applicants have put into place in order to best meet the Child's needs. The Child has a highly structured day and attends appointments two to three days a week to receive the services outlined in previous paragraphs. The Child engages in regular "homework" given by her service providers in order to maintain and achieve service goals. The foster mother is her primary caregiver and engages on a daily basis with the Child to work on all of the Child's skill areas and accompany her to all of her appointments.

37The foster mother described the routines required to help the Child fall asleep at nap and bedtime. She testified that it takes one to one and a half hours for the Child to go off to sleep using massage, a weighted blanket, swaddling and a sound machine. The Applicants also use a video monitor to observe the Child while she transitions and is sleeping. The foster mother testified that if the Child does not nap or have a good sleep, the Child tends to have more "meltdowns" as a result. i.e., she struggles with eating, has difficulty focusing on tasks and throws things or falls to the floor.

38The foster mother testified that their lives had changed significantly in order to accommodate the Child's special needs and that they have made the Child's schedule their priority. She further testified that she had been advocating to meet the Child's needs since she became aware of them. She has advocated for services, ensured that the Child has attended all of her appointments, and followed the advice and recommendations of all the Child's service providers in order to ensure that all of her needs are met. She stated that she has been and will continue to be a "strong voice" for the Child.

39Both the Respondent and the Other Family suggested that the Child's special needs and level of independent functioning had been exaggerated by the Applicants. The reports submitted into evidence from the local children's centres and the testimony of and letters from the Child's services providers do not support this suggestion. In addition, two witnesses, JS, an infant and child development worker and, CM, the Child's worker, testified that the special needs of the Child, her independent level of functioning and her delays were not exaggerated by the Applicants. Based on all of the evidence before it, the Panel concluded that the Applicants did not exaggerate the Child's needs.

40MT, who is LT's mother, testified that she has come to understand the Child's needs better over time through the contact the Other Family has had during sibling visits as well the other opportunities that she had to observe the Child in the Applicants' home and in her own home on a number of occasions. MT described in detail what the Child's day and routines look like and her observations of some of the challenges the Child experiences with respect to feeding, mobility, sensory issues and communication. MT stated that they had educated themselves about FASD and were aware of the Child's range of service providers and appointment schedule. MT also spoke to the long term challenges the Child would face and stated that she had no worries about meeting the Child's needs into the future. She also testified about her experience in caring for a family relative with autism who was non-verbal until the age of seven and who is now an adult.

41The Panel did not receive any evidence that disputed the fact that the Child is significantly developmentally delayed in a wide range of areas of functioning, that she has been receiving a range of services to meet her needs, that she is at risk for FASD and that she likely will require life long support to continue to meet her needs. The Panel also did not receive any evidence to dispute that the Child's needs have been well met by the Applicants since she has been in their care.

42Meeting the Child's needs has been the result of a significant effort on the part of the Applicants to the point where their lives have been altered to ensure that the Child's schedule is the priority. The Child has done well in the care of the Applicants. There is a well established pattern of care that has been provided for the Child that is stable, structured and consistent. This pattern was acknowledged to be of particular importance for children at risk for FASD and changes in that pattern can impact them in negative ways.

43The position put forward in the ANA and by the Other Family was that the Other Family was aware of the special needs of the Child and could come to meet those needs. The Panel does not dispute that that may be the case. However, the needs of the Child have been and continue to be well met by the only caregivers she has known since birth. Furthermore, there was no evidence presented that disrupting the well established pattern of care by the Applicants by removing the Child from their home would be of benefit to or in the best interests of the Child. Nor was there any evidence presented that discontinuing care by the Applicants would be of benefit to or in the best interests of the Child from the point of view of the Child's known and future level of functioning and current and likely future needs.

The Child's Emotional Needs – Attachment

44The Panel received evidence related to the Child's emotional needs and attachment from Dr. Fred Schmidt, the psychologist who conducted the ANA along with Camisha Sibblis. Dr. Schmidt was qualified by the Panel as an expert in forensic, clinical and child psychology, all including attachment. The Panel also received evidence from Dr. Milton Blake, who was engaged by the Applicants to undertake an assessment on the question of attachment. Dr. Blake was qualified by the Panel as a clinical psychologist specializing in family assessment and treatment, children's emotional attachment, Post Traumatic Stress Disorder and psychological trauma.

45Dr. Schmidt stated in the ANA that the Child had some attachment to the Applicants but the nature and strength of the attachment could not be "conclusively determined" at the time of the ANA. He also stated that ".... [the Child] would be less likely to suffer significant or long-lasting setbacks as a result of a move." Dr. Schmidt and Ms. Sibblis, observed the Child interacting with the Applicants on two occasions, November 12 and 16, 2019. Dr. Schmidt mentioned that "secure attachment tends to be delayed in children with significant cognitive and developmental delays and therefore the nature and strength of the attachment cannot be conclusively determined at this time". In his testimony, Dr. Schmidt stated that it is difficult to apply the research on attachment to children with significant developmental delays such as the Child because that literature is limited. He stated that there are risks associated with moving children if there are problems in the transition and if there are repeated moves the risks are increased. Dr. Schmidt mentioned the Child's resiliencies as a defence for her being able to be moved but did not state what those resiliencies were and how they would mitigate against the possible traumatic impact of moving her.

46In the ANA report, the assessors described the observations made of the interactions between the Child and the Other Family. These observations occurred on November 17 and 18, 2019. However, the report did not comment on the issue of attachment between the Child and the Other Family.

47Dr. Blake, another psychologist, was engaged by the Applicants to focus on the issue of attachment. The Other Family was offered an opportunity to be observed with the Child by Dr. Blake but they declined. Dr. Blake observed the Child with the Applicants in order to evaluate the extent and nature of their attachment and to comment on how removing the Child from the Applicant's home might impact her.

48In addition to observing the Child and the Applicants, Dr. Blake also evaluated attachment between them using two scales designed for this purpose. However, the validity and reliability of these scales were called into question in the course of the proceedings and are not relied upon in this decision. The Respondent and the Other Family questioned the value of Dr. Blake's evidence based on the questionnaires. The Panel did not give any weight to the questionnaires used by Dr. Blake and relied only on the evidence based on his observations. Clinicians' observations were described by the Respondent's expert, Dr. Schmidt, as the "gold standard" used by practitioners in assessing children and families. Neither the Respondent nor the Other Family challenged the validity of Dr. Blake's observations.

49Dr. Blake observed the Child with the Applicants on July 10 and July 22, 2019 and concluded that the Child "experiences a significant emotional attachment to both foster parents, especially [the foster mother]". He stated that there is no current research regarding the impact of how "severing of an emotional attachment after several years in the care of foster parents would affect a child with FASD". However, he cited research in his report that speaks to the impact on developmentally normal children who experience separation and loss. Examples included being developmentally "stuck", interference with identity, possible regression in recently acquired skills and an interruption in the acquisition of language as well as an impact on aspects of personality development. In the broadest terms, the effect of separating developmentally normal children was described in terms of trauma. The effects of separating developmentally delayed children is less clear but, according to Dr. Blake, there would be a "significant risk of post-traumatic stress and its sequelae, including arrested brain development".

50Both Dr. Schmidt and Dr. Blake confirmed that the Child has an attachment to the Applicants. Dr. Blake, the Applicants' expert on attachment, described it as a significant attachment. The impact of a move on the Child, who has been clearly identified as developmentally delayed, is unknown. However, on the basis of what is known with regard to the impact on developmentally normal children, there may be a negative impact. Therefore, there are risks associated with moving the Child related to her emotional needs and level of development.

51The issues for the Panel in considering the Child's emotional needs and level of development in contemplating a move from the Applicants' home are whether these needs have been met in the Applicants' care and whether it would be beneficial to the Child or in the Child's best interests to remove her. On the basis of the evidence outlined above, the Panel concludes that the Child's needs have been met in the care of the Applicants and it would not be beneficial or in the Child's best interests to remove the Child. The Panel found that the risk associated with moving the Child at this time outweigh the benefits, especially taking into account the Child's significant delays and disabilities.

The child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression and the child's cultural and linguistic heritage.

52The Child is biracial. Her biological mother is half Black of Jamaican heritage and half White of Finnish heritage. The race and heritage of the Child's biological father are unknown. The Applicants described the Child as appearing East Indian and/or Aboriginal and described the biological mother as having a similar appearance. The Child's cultural heritage was not described in detail, however, the issue of culture was raised in the course of these proceedings and will be touched on in the following paragraphs.

53The position of the Respondent with regard to best interest considerations having to do with race and culture is that the Child should be removed from the home of the Applicants and placed with the Other Family because the Other Family is a racial match and share a similar cultural heritage. This is also the position of the Other Family. The Other Family is comprised of the father, DT, who is Black of Grenadian heritage, the mother, MT, who is White, and of Scottish and Finnish heritage, and their child, LT, the Child's half-sibling, who is biracial and shares a similar ancestry and cultural heritage with the Child through the biological mother. The Other Family's social circle also includes the Child's maternal aunt who is Black and members of DT's family.

54Two witnesses for the Respondent, KO and WM, testified at length about the recent efforts being made by the province of Ontario and the Respondent to address the overrepresentation of Black children and children of other minorities in the care of the child welfare system and the Respondent's agency. They both provided an overview of work that has been done and is underway to develop and implement policies and strategic plans to address anti-racism. anti-oppression and systemic problems in order to better serve minority children. The Preamble to the Act incorporates the principles that have resulted from these efforts along with other principles.

55KO is currently an employee of OACAS in the role of the Project Manager for One Vision One Voice ("OVOV"). She spoke at length about OVOV, a community led initiative funded by the Ontario Ministry of Children and Youth Services and report published in September 2016. The report provided a best practice framework to inform decision-making within the child welfare system. Its findings included quotes from participants regarding their experiences with transracial adoptions and fostering. It was subsequently published on the OACAS website as a tool to be used by member agencies in developing agency policies and practices. The Panel recognizes the value of the OVOV report as providing some context to issues of anti-Black racism. However, the Panel did not place significant weight on the conclusions of the OVOV report in making its decision about the Child given the absence of specifics regarding the samples and the methods used in gathering information especially in reference to the quotes relating to the impact of transracial adoption on the racial identity and experiences of Black children.

56KO is not an expert in transracial adoptions and she had no contact with the Child, the Applicants or the Other Family. However, she stated that a child who appears Black or Indigenous would have difficulties but agreed that she did not know what experiences the Child would have. She stated that it was possible for White parents to come to meet the Child's needs as a biracial child and could do a lot to meet those needs but seeing Black people in their home is important.

57The second witness, WM, the Director of Children's and Residential Services for the Respondent agency, testified about the agency's efforts to build on the work reflected in the OVOV report. A committee was struck to create awareness of issues within the agency, develop agency policies, training and a strategic work plan. The strategic work plan was initiated in 2016-2017. Its goals were to collect data to identify users of service who were Aboriginal, African Canadian, LGBTQ, poor, and single parent households. These data would be used to highlight challenges faced by different groups based on differing identities, to develop service standards reflective of different identities and ultimately improve service delivery.

58One of these standards, Standard 9, entitled Meeting the Placement Needs of the Child, reads as follows: "The Society ensures that there is a match between the needs of the child and the attributes of the adoptive family". It goes on to list the various abilities required of an adoptive family relative to a list of needs of the child. This standard is similar in content to the range of factors set out in sections 74(3) (c) and 179(2) (c) of the Act. Reference is also made to compliance with the relevant provisions of the Charter of Rights and Freedoms and the Ontario Human Rights code. WM noted that as of the date of her testimony, this standard had not been finalized by the agency.

59The work of the committee was a significant undertaking for the agency and it took three years to write an anti-oppression policy statement to guide the agency's work. The agency developed identity training materials and began training workers, foster parents and volunteers in two non-mandatory sessions offered in the winter of 2018/2019. Topics in these sessions included exploring misunderstandings about different identities and creating self-awareness about white privilege. The foster mother attended one of these training sessions.

60WM pointed out that the agency does not have much material for caregivers focused on anti-racism and anti-oppression. There is no dedicated equity worker in the agency and more resources are needed in order to reach the goals identified in the strategic plan. The agency is working on building knowledge with current caregivers. She further stated that it was "early days" in implementing a plan that is consistent with anti-oppression principles. She clarified that the agency does not currently have many resource families reflective of the range of children and families of varying identities served by the agency but are doing more active recruitment by targeting a more diverse population of caregivers.

61WM summarized the position of the Respondent agency leading up to the need for the ANA. Given her role in the agency, she was informed and involved in the decision making regarding the ANA. She testified that the ANA was undertaken to assess a range of factors such as attachment, continuity of care, and identity in order to inform decision making regarding placement for the Child. She further testified that the Respondent agency did not have the expertise within the agency to take on this task.

62The Respondent called Ms. Sibblis to testify on the issue of race and culture as well. The Panel qualified her as an expert in anti-Black racism as it intersects with institutions and Black identity in school age children and adolescents. Ms. Sibblis has completed assessments that take race into account in order to inform decision making for children and youth served by social institutions such as school settings, the criminal justice system and child welfare.

63Ms. Sibblis, along with Dr. Schmidt, conducted the ANA at the request of the Respondent. One of the central questions in the ANA was whether the placement with the Applicants met the guidelines under the Act that relate to race and culture. Ms. Sibblis testified that based on her interviews with the Applicants, they did not have an understanding about the cultural needs of the Child and "trivialized" the centrality of culture. She stated that children involved in transracial adoptions are at risk of experiencing higher social maladaptation. She defined social maladaptation as being on the fringe of society in many ways leading to behaviours such as self-medicating, drug use, antisocial behaviour, criminalized behaviour among others and a failure to preserve cultural identity.

64Ms. Sibblis concluded that the Applicants had met their capacity with regard to their efforts in meeting the Child's needs as they relate to race and culture. The ANA report summarized its findings by stating that: "The [Applicants] have not sufficiently demonstrated their ability to truly appreciate the importance of race and culture in the overall development of the child." This conclusion was based on comments made in the course of the interviews with the Applicants. For example, the foster father was reported to have said in the interview that "the experts don't even know what culture is .."; a comment about the population in the local community being predominantly white; and the Applicants' initial questioning of the involvement of Ms. Sibblis, who is Black, for fear that her assessment would be biased. The foster mother clarified in her testimony that the reason they questioned Ms. Sibblis's involvement in the ANA initially was that they didn't know who she was or what her qualifications were whereas they were familiar with Dr. Schmidt's.

65The evidence presented in support of the Respondents' position with regard to race and culture through KO and WM was focused on the need for the child welfare system to take into account the varying identities of service recipients, to acknowledge the existence of systemic racism and oppression and to make changes in policy, standards and practices to address them and ultimately reduce the over representation of certain groups within the child welfare system. This is necessary and important work and in line with the Preamble of the Act which states that: "Systemic racism and the barriers it creates for children and families receiving services must continue to be addressed". The evidence presented by Ms. Sibblis focused on conclusions with regard to the social maladaptation experienced by children in transracial adoptions and on the interviews she had with the Applicants. Ms. Sibblis was not qualified as an expert in transracial adoptions and the Panel cannot place weight on her conclusions related to transracial adoptions and maladaptations given that they are outside the scope of her expertise.

66The Respondent provided a number of research studies in support of its position as well. All of the studies were conducted in the United States and are relatively dated. The findings from these studies ranged widely with regard to their applicability to this case and usefulness in deciding the issue. For example, they included a study involving the placement of Korean children in transracial homes; studies with small sample sizes and reporting qualitative or anecdotal data, and in one case, a study on the kinds of supports needed by families who adopt transracial children. These studies included findings that indicated that most children placed in transracial adoptions did well. One longitudinal, transracial adoption study of a relatively large sample of children who were white, black and other race/ethnicities reported generally positive outcomes.

67The Respondent's position as presented is based to a large extent on race and culture at a large system's or organizational level, on research and on speculating about what the Child may face in the future. The Panel heard other evidence with regard to what the Child's current needs are with respect to race and culture, what efforts had been made by the Applicants to meet those needs and whether the Applicants can meet her future needs in this regard.

68The Respondent agency made a decision to place the Child in the care of the Applicants in 2015 and maintained her in their care. It approved the Applicants' adoption plan and informed the Other Family of this decision in May 2017. In addition, the Panel heard that four other Black/biracial children as well as two Aboriginal children had been placed in the Applicants' care before the Child was placed with them. At the time that each of these placement decisions was made by the Respondent agency, it would have had to consider the capacity of the Applicants to meet the racial and cultural needs of each of the children involved and concluded that they could. This evidence is inconsistent with the view that the Applicants' cannot meet and have not met the Child's needs as they relate to race and culture.

69The Panel heard testimony from the Applicants that was directly related to this issue and which was not taken into account in the course of the ANA. The Applicants have done several things to nurture the Child's sense of identity as a biracial child and her emerging self-identity. They have purchased dolls, books and music reflective of the Child's biracial identity. The foster mother participated in the training on identify offered by the Respondent agency and participates in two support groups for parents raising children who are racially different from them and/or who have other differing identities. The Applicants have reached out within the local multicultural community to seek advice and resources and they have involved the Child in local events that have a multicultural focus.

70The Panel heard from the foster mother that she had sought direction and support from the Respondent agency on race and culture and was told on more than one occasion that what they were doing was sufficient. The foster mother stated in her testimony that she had learned much from the proceeding itself with regard to issues of anti-racism and what some of the challenges ahead might be for the Child. She further testified that she would need to continue to educate herself and advocate for the Child to ensure her needs are met.

71The foster mother testified that she had had discussions with the Child's worker, CM, related to the importance of race and culture and that CM told her that the biological mother was a big factor for the Child in meeting her cultural needs. She testified that CM told her how important it was for the Child to be proud of who she is but did not tell her how she should go about doing this. The foster mother did not mention that any of these discussions focused on the racist experiences the Child would likely have and how she needed to prepare to deal with them. She further testified that the Respondent agency did not provide any specific guidance, direction or expectations with regard to what they should be doing to address the Child's needs nor did the agency ever express any concern that the Applicants could not meet or were not meeting the Child's needs as they relate to race and culture.

72The Applicants have recognized the importance of the presence of the Child's biological mother in her life as well as that of both the Child's younger and older half-siblings. The Applicants are committed to maintaining those relationships. The foster mother testified that it is important for Black children to have racial mirrors and the Child's biological mother is one example of such a mirror. The foster mother testified that she had had discussions with the biological mother about the biological mother's experience of racism.

73In general, the Respondent's decision making with regard to placing the Child with the Applicants, maintaining her in the Applicants' care and placing other Black/biracial children in their care strongly supports a conclusion that the Applicants have the capacity to meet the racial and cultural needs of the children involved and have met their needs. The work being done on a systems' level and at the agency level as presented by the Respondent's witnesses focused to a large extent on children in foster care removed from the care of their parents and who have experienced multiple moves. The research does not support a position that transracial placements are not or cannot be successful. The ANA testimony of Ms. Sibblis did not take into account the full range of efforts and actions undertaken by the Applicants to enable them to understand and meet the Child's needs with respect to race and culture nor did it factor in the extent to which the Applicants did not receive much support from the Respondent in doing so.

74The position of the Other Family invoked the comparison of the "60s scoop" of Aboriginal children who were taken away from their families and their culture and the dramatic impact that had on their lives. The Panel acknowledges the importance of the lessons that have hopefully been learned from that chapter in Canadian history. However, the details and circumstances surrounding the Child's situation are not analogous. As noted in later sections of this decision, from the Child's point of view, the Applicants are her "psychological" parents and she is a member of the extended family. They are her family. In addition, the Child was placed with the Applicants at birth by the Respondent and the Respondent maintained that placement with the Applicants. Furthermore, the Child has had and continues to have a close connection with her biological mother and JO – her biological family - through the efforts of the Applicants which they intend to maintain because of its importance to the Child.

75The Other Family argued that it could better meet the Child's needs in this regard because DT is Black and his child LT is biracial. Furthermore, the Other Family has links to members of the Child's biological family such as her maternal aunt who is Black as well as DT's family and the larger Black community through DT. The Panel acknowledges that the Child will very likely experience racism over the course of her life and possible discrimination based on other identifying characteristics including her disabilities. DT and LT would have their own experiences of racism to draw upon to support the Child were she to be in their care. This would also be true of the Child's biological mother.

76There was no evidence presented by any of the parties with regard to the Child's own experiences in this regard. Nor was there any evidence available as to how the Child self-identifies with regard to race and culture. Her future needs as a person who is both Black and White as they relate to race and culture can be somewhat anticipated but ultimately are not known at this time nor are the experiences she may face.

77The Panel acknowledges that significant weight was given to race and culture by the Respondent and the Other Family in their testimony and submissions. However, these reasons clearly reflect that the Panel considered these factors along with the other relevant best interests factors in deciding the matter. Similar to these other factors, the Panel relied on the evidence before it in order to determine whether the test had been met with regard to race and culture. The question for the Panel is not which of the two families at this point in the life of the Child can better meet her needs in this regard and into the future, the question for the Panel with regard to the best interests considerations that relate to race and culture is whether the test has been met by the Applicants. The Panel concludes that the preponderance of the evidence presented is that the Applicants are meeting the needs of the Child and will continue to do so with regard to race and culture and therefore the best interests test in this regard is met.

The importance for the child's development of a relationship with a parent and a secure place as a member of a family; 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.

78These two best interest factors are considered together and are examined from the Child's point of view with regard to who her parents and family are and the relationships and emotional ties she has with them as well as with others included in her circles of care and contact. Given the Child's age, level of development and lack of participation in the proceedings, the Panel has looked to objective indicators to shed light on the relationships in her life, the emotional ties they likely represent and their significance as measured by the length of time over which any relationship has existed and the frequency and regularity of the contact with the Child.

79The Respondent's submissions did not take into account the Child's point of view with regard to these factors as it relates to the most significant relationship and ties for the Child. It did not speak to the relationships and emotional ties that have been established between the Child and the Applicants and the extended family from the Child's point of view and experience. No consideration was given to these important relationships established over her lifetime and their significance. The Panel takes the view that consistent with the Preamble of the Act, and as a first principle, services for children and decisions that impact them should be child-centred, i.e., made with the Child's point of view in mind. This is consistent with other decisions made by the CFSRB with regard to the meaning of parents, family and extended family from the child's point of view, e.g., AC v Simcoe Muskoka Child Youth and Family Services (CYFSA s.192) 2019 CFSRB 16.

80The submissions from the Other Family take into account the Child's point of view to some extent with regard to the relationships and emotional ties with family and extended family. Their evidence acknowledged "the positive place" the Child has within the Applicants' family as well as the emotional ties to the Applicants and their extended family. They further acknowledged that the Child is "building" ties with LT and that she has emotional ties with her biological mother and JO. The focus of their evidence however is on the capacity of the Other Family to fully recreate that same experience for the Child rather than the significance of the bonds and ties that currently exist for the Child and the impact on her of severing or disrupting those ties.

81As foster parents, the Applicants have functioned in the role of parents of the Child for over four years. The Child has never been in respite. The foster mother has been the sole primary caregiver on a continuous basis for that entire time. The Child calls the foster mother "mommy". From the Child's point of view, the Applicants are her parents. The emotional ties that the Child has with the Applicants are well established on the basis of the continuous contact and care she has received from them over her lifetime.

82One of the Applicants' adult children, TD, resided in the Applicants' home since the Child was placed there. The Applicants' other adult sons visit on a weekly basis for Sunday dinner. The Applicants described this as a regular occurrence. These weekly gatherings include the Applicants, the Child, TD, the Applicants' other adult children and their partners and the Applicants' five grandchildren and step grandchildren - "the extended family".

83The foster mother testified that the Child has a relationship with each of the other family members and calls her adult son's "brother" and all of the other extended family members by name. The foster mother described in detail the nature of the relationship that the Child has with each individual member of the Applicants' extended family. In addition, she testified that TD and her other adult children have provided "baby-sitting" for the Child since she has been in their care. Given the frequency and regularity of these contacts between the Child and the extended family, the Panel concludes that the emotional ties between the Child and the extended family are well established especially with TD who has been present in her life on a daily basis and with the other extended family members as well.

84The Child's family circle also includes her biological mother, her younger half-sister JO and her older half-sister LT. The foster mother's evidence included details with regard to the frequency and regularity of contact between the Child and her biological mother. The Child has had regular contact with her biological mother throughout her life. Regular access visits occurred starting shortly after the Child was born and have continued to the present day. Face to face visits have occurred on numerous occasions, some have taken place in the city where the biological mother lives and some where the Applicants live. A number of these visits have extended over a period of days.

85The Child was taken to visit her biological mother in February 2017 shortly after the birth of her younger sister JO whom the Child refers to as "sissy". Since that time, there has been regular contact between the Child and her biological mother and JO. These contacts are by means of video chats and phone calls. The foster mother shares information such as medical updates with the biological mother and sends pictures, texts and videos on a regular basis and on special occasions. The Child is aware that the biological mother is her mother and that JO is her sister. The Applicants have made concerted efforts to establish and maintain a connection between the Child and her biological mother and JO. In doing so, they have recognized the importance of this relationship for the Child and are committed to maintaining it.

86The Other Family does not have a relationship with the Child's biological mother or with JO. They have made efforts to establish one and continue to do so. They do have a relationship with the Child's maternal aunt, however, the maternal aunt has an estranged relationship with the Child's mother and no relationship with the Applicants.

87The Child was first introduced to her older half-sibling LT in February 2018. They have had regular visits since that time. According to the foster mother, the Child also refers to LT as "sissy". Between February 2018 and August 2018, approximately seven one hour visits occurred at the Respondent's location. Starting in August 2018, visits occurred for longer periods in the community without supervision by the Respondent. There were approximately 19 of these visits between August 11, 2018 and February 9, 2019. Visits between the Child and LT have since been scheduled to take place for an hour once a week at the Respondent agency's location and are supervised by the Respondent agency. The Child has also spent time at LT's home more recently for a couple of visits. In summary, the contact between the Child and LT over approximately the last year and a half is estimated to be around 100 hours.

88The contact between the Child and LT is perceived to be important by all parties. MT, LT's mother, spoke about their wish for a sibling for LT and LT's own wish to have the Child live with the Other Family. MT also spoke about LT's enjoyment and excitement in anticipation of her visits with the Child. The Child also is excited to see LT and enjoys these visits as reported by the Applicants and the Other Family.

89Both the Other Family and the Applicants recognize the importance of this relationship and the need for it to be maintained. Although the contact between the Child and LT has been less than that between the Child and the Applicants' extended family and that between the Child and her biological mother and JO, a relationship has been established. The foster mother stated that she sees that relationship as being similar to that between the Child and JO, the Child's younger half-sibling, and wants to see it continue and grow.

90The best interest factors having to do with relationships and emotional ties take into account the circles of care and contact that the Child has had over her lifetime as experienced by the Child. The individuals in these circles have had different levels of contact based on the frequency, regularity and continuity of the care they have provided and contact they have had with the Child, both planned and spontaneous. The most intimate circle includes the Child and the Applicants, the next circle includes the Applicants' family who have become the Child's extended family, the outer circle includes the Child's biological mother and JO. All of these contacts can be characterized as frequent and regular as well as being both planned and spontaneous. Her contact with LT could be represented in the outermost circle along with friends and particularly other children that the Child participates with on a regular basis in some of her activities and programs such as Kindermusik, a program the Child has consistently participated in since October 2017 to meet her needs. These contacts can be characterized as being regular and planned but less frequent and not of a spontaneous nature.

91The Panel concludes that the relationships and emotional ties that have been established between the Child and the Applicants and the extended family are well established and in the best interests of the Child. Moreover, the bond between the Child and her biological mother and JO has also been established and is a significant one for the Child as is the one between the Child and LT. It would not be of benefit or in the Child's best interests to sever or significantly disrupt any of these relationships and emotional ties. A move from the foster home would have the result of disrupting or severing the emotional ties that currently exist between the Child and the most significant people in her life whom she has experienced as her parents, her family and her extended family.

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

92This best interest factor is considered in earlier sections of these reasons and is taken into account with respect to the Child's physical, mental and emotional needs, and level of development and the relationship she has established with the Applicants who are her "psychological" parents along with the relationships established with extended family members.

93The Child is four years old. She has a wide range of significant needs that are expected to continue as she grows. She has a highly structured routine that meets her needs and one that will need to be maintained in order to continue to do so. She has parents who have cared for her since birth, a family and extended family that has embraced her and love her as their own. These are the only parents and family she has known since her birth. There would be no benefit to the Child in disrupting those routines or in disrupting these relationships. We accept Dr. Blake's evidence that to do so would mean that the Child would have to bear the burden of such disruptions.

CONCLUSIONS

94The Preamble to the Act exhorts decision makers to make decisions and find solutions that are child-centred, represent the least disruptive course of action, and ensure continuity in a child's upbringing with due consideration to factors such as ethnicity and culture. The Respondent's decision to remove the Child from the Applicants' home and refuse the Applicants' plan to adopt her is inconsistent with these over-arching principles. These principles have been applied to the best interests considerations and informed the decision of the Panel.

95The evidence and submissions of the Respondent and the Other Family focused almost entirely on issues of race and culture. The Panel considered these best interest factors along with all of the other relevant factors in s.74(3)(c) and s.179(2)(c) of the Act in determining what action is in the Child's best interests. The Panel concludes that the placement with the Applicant foster family has met all of the best interests tests which have been cited as relevant in the circumstances, including the test for s.74(3)(c)(iii) and (iv) and s.179(2)(c)(iii) and (iv). and that there are no grounds for the removal of the Child from their home nor grounds for refusing their adoption plan. In addition to meeting this test, the Panel concludes that the least disruptive course of action would be to maintain the Child in the home of the Applicants and by so doing ensure continuity in the Child's upbringing.

96It is important that decisions about a permanency plan for any child be made sooner rather than later and it is in any child's best interest to do so as reflected in Sections 74(3)(c)(ix) and 179(2)(c)(viii) of the Act . The Panel recognizes that there were a number of factors that delayed a decision in this case such as the need to allow the Child the opportunity to be reunited with her biological mother and for the biological father to submit a permanency plan. The process was further delayed as the result of the time involved in planning for and undertaking mediation and the ANA.

97The Panel acknowledges the wishes and commitment that the Other Family has had with regard to the Child's placement even before the Child was born and over the last four years. If a decision were to be made at another point in time, and, in particular, at the earliest possible time, taking into account the best interests of the Child, the decision might have been different.

98The delay in the process resulted in the need for the CFSRB to make a decision at a time when the Child was four years old after she had been placed and remained in the same home from birth continuously for four years. The underlying reasons for the delay resulted in conflict among the parties and considerable cost to the Other Family and to the Applicants. More importantly, this delay has impacted on the prospects for the Child of having an easy, open and comfortable relationship with LT. It is the hope of the Panel that a way can be found by the parties to facilitate such a relationship in the interests of both the Child and LT.

99Having considered all of the evidence and the parties' submissions and the relevant sections of the Act, we conclude that the Respondent's decision to remove the Child from the Applicants' home and refuse the Applicants' plan to adopt the Child should be rescinded.

ORDER

100On October 4, 2019, the CFSRB made the following Order:

The Respondent is directed not to carry out the proposed removal of [the Child] from the Applicants' home.

The Respondent's decision refusing the Applicants' application to adopt [the Child] is rescinded and the Respondent is directed to proceed with the Applicants' adoption application.

CONFIDENTIALITY ORDER

101Except as otherwise provided in the Order, pursuant 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.