JT and CT v. Windsor-Essex Children’s Aid Society, 2020 CFSRB 9

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

JT and CT Applicants

-and-

Windsor-Essex Children’s Aid Society Respondent

DECISION

Adjudicator: Michele O’Connor, Theresa Hughes and Catherine Bickley Date: February 3, 2020 Citation: 2020 CFSRB 9 Indexed As: JT and CT v Windsor-Essex Children’s Aid Society (CYFSA s.109 & 192)

APPEARANCES

JT and CT, Applicants Self-represented

Windsor-Essex Children’s Aid Society, Respondent Claudine Wilson, Counsel

INTRODUCTION

1These are Applications filed on September 26, 2019 with the Child and Family Services Review Board (“CFSRB”) under section 109(8) and section 192(3) of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1 (the “Act”). JT and CT (“the Applicants” or “JT” and “CT”) have asked the CFSRB to review the Respondent’s decision to refuse the Applicants’ application to adopt SG (“the Child”) and to remove her from the Applicants’ home where she lived as a foster child from October 2016 to September 2019. The Respondents intend for the Child to be adopted by RH and AH (“the Hs” or “RH” and “AH”) with whom she has lived since September 2019.

2On November 1, 2019 the CFSRB held a preliminary hearing on the issue of notice. In a November 8, 2019 Interim Decision, JT and CT v. Windsor-Essex Children’s Aid Society, 2019 CFSRB 74, the CFSRB found that the Respondent had not given the Applicants proper notice. As a result, the Child’s removal from the Applicants’ home contravened the Act.

3The hearing on the merits took place in Windsor on December 10, 11, 18, 19, 2019 and January 2, 2020.

4The Applicants both testified. They did not call any other witnesses.

[5] Affidavits from the following witnesses were supplemented by oral testimony:

• the Child’s worker since October 2016
• the resource worker for the Hs’ foster home
• the resource worker for the Applicants’ foster home
• the adoption worker involved from August 13 to August 24, 2019
• the adoption worker involved since September 5, 2019
• the adoption supervisor involved since April 2019

6Neither party presented expert evidence or submitted case law.

[7] On January 7, 2020, the CFSRB issued the following order with reasons to follow.

1. The Respondent is directed to return SG to the Applicants’ home forthwith and, in any event, by no later than January 14, 2020. The Respondent shall involve the Children’s First worker and/or any other appropriate professionals in order to assist with the transition.
2. The Respondent’s decision refusing the Applicants’ application to adopt SG is rescinded.
3. The Respondent is directed to place SG on adoption probation as soon as she is returned to the Applicants’ home.
4. The Respondent is directed to proceed with the Applicants’ adoption application expeditiously.
5. The CFSRB will remain seized with respect to the implementation of this Order.

8These are our reasons for the January 7, 2020 order.

PROCEDURAL ISSUES

The Respondent’s improper removal of the Child

9Before dealing with the substantive issues before us, we comment on two procedural issues.

10In a November 8, 2019 Interim Decision, JT and CT v. Windsor-Essex Children’s Aid Society, 2019 CFSRB 74, the CFSRB found that the Respondent did not provide proper notice to the Applicants under sections 109 and 192.

11As stated in the Interim Decision, at para 12, the notice requirements in sections 109 and 192 of the Act are mandatory and serve several important purposes:

First, they notify foster parents and prospective adoptive parents of decisions that significantly impact their lives and the lives of children in their care (or who they hope will come into their care). Second, they tell foster parents and prospective adoptive parents that they have a right to have those decisions reviewed by the CFSRB. Third, they provide clarity about the time period in which foster parents and prospective adoptive parents can apply to the CFSRB. That period is very short – only 10 days from when notice is received. This short time period ensures that children and families do not remain in a state of uncertainty for a prolonged period.

[12] If the Respondent had given proper notice, there would have been two possible outcomes:

1. 10 days would have passed without the Applicants filing applications with the CFSRB. The plan for the Child to be adopted by the Hs could have proceeded without delay or disruption.
2. The Applicants would have filed applications with the CFSRB. The Child would have remained in the Applicants’ home until the CFSRB hearing concluded and the CFSRB made a decision as to which of the two competing adoption plans was in the Child’s best interests.

13The Act is explicit that a child must remain in the foster home (section 109(16)) and/or must not be placed for adoption with “a person other than the person who has a right to apply for a review” (section 192(12)) until the expiry of the appeal period or the outcome of the review.

14This statutory scheme is intended to avoid the very situation which has unfolded here: the destabilization of a child’s life while her ultimate placement remains undecided. As noted in NC v. Kunuwanimano Child and Family Services, 2018 CFSRB 28, at para 82, these provisions “promote the best interests, protection and well-being of children by ensuring that their placements are disrupted as little as possible.”

The Respondent’s failure to disclose

15A November 27, 2019 Hearing Report directed the parties to disclose “all arguably relevant material” to one another by no later than December 2, 2019.

16It became apparent during the first two days of the hearing on the merits that the Respondent had failed to disclose numerous documents that were not only arguably relevant but highly relevant to the issues before us. Despite clear direction from the hearing panel to both parties that all relevant documents must be disclosed before the hearing continued the following week, documents the Respondent had not disclosed continued to surface even on the fifth and final day of the hearing.

17We reject the Respondent’s submission that it could not have anticipated that CT or JT would talk about a topic engaged by a particular CPIN contact log. The Respondent’s obligation was not to guess the exact topics a witness might testify about; its obligation was to disclose to the Applicants all arguably relevant documents in advance of the hearing. When a Children’s Aid Society proposes to remove a child from one family’s care and place them with another family all CPIN notes about either family are arguably relevant and must be disclosed in advance of the hearing. The failure of the Respondent to do so unnecessarily lengthened the hearing and was unfair to the self-represented Applicants.

18Further, we had to request highly relevant material from the Respondent such as the home studies of the two families and the plans of care for the Child and her half-siblings. These documents had not been disclosed to the Applicants and the Respondent did not intend to file them at the hearing. Given our task, we found these documents to be both relevant and necessary in order for us to have a full picture of the Child, her siblings and the two possible placements. The failure of the Respondent to put this material forward without direction from us caused delay while those materials were obtained, copied and distributed and necessitated the recall of witnesses.

19The CFSRB previously gave the Respondent direction about disclosure: see JS v. Windsor-Essex Children’s Aid Society, 2017 CFSRB 33. More recently, in PT v Windsor-Essex Children’s Aid Society, 2019 CFSRB 52, the CFSRB noted:

Notwithstanding the Pre-Hearing Direction that parties were to disclose all arguably relevant material to each other, the Society provided minimal disclosure to the Applicant.

20Children’s Aid Societies have an obligation to make full disclosure of all arguably relevant material before the start of a CFSRB hearing. This is particularly important when a Society is in litigation with self-represented applicants, as in this case.

21We have criticized the Respondent’s failure to provide proper notice of the Child’s removal from the Applicants’ home and the Respondent’s failure to provide proper disclosure. We did not, however, give any weight to these procedural failures in reaching our decision on the merits. Our decision regarding what action is in the Child’s best interests is based solely on the substantive evidence and the parties’ submissions.

22We turn now to a review of the background, the relevant law and an analysis of the evidence and submissions before us.

BACKGROUND

The Child and her half-siblings

23The Child was born on [...], 2015. She is the youngest of four children who have the same birthmother. She does not share a birthfather with any of her half-siblings.

24In October 2016, the Respondent removed the four children from their birthmother’s care and placed the children in three different foster homes.

25The Child was placed with the Applicants and remained in their home until September 17, 2019 when she was moved to the home of the H family.

26The Child’s two older half-brothers (DG and ShG) were placed with the H family. After a few weeks, the younger boy, ShG moved to a therapeutic foster home due to significant behavioural issues beyond the Hs’ ability to manage. The older boy, DG, remained in the H home as a foster child and was living there at the time of the hearing.

27The Child’s older half-sister, StG, was placed in another foster home where she remained until August 9, 2019. She was then moved to the H home as a foster child and was living there at the time of the hearing.

28The Respondent’s original intention was to reunite the children with their birthmother. According to the adoption supervisor, the Respondent also considered returning only the Child to her birthmother. Neither plan proved viable and on February 14, 2019, the Ontario Court of Justice ordered the four children be placed in extended society care.

29The Child has no diagnosed special needs. She has some issues with regulating and expressing her emotions. These issues are discussed further below. She is currently attending full day junior kindergarten.

30The Child’s 8 year old half-sister, StG, has a diagnosis of ADHD and is cognitively delayed. Her chronological age would place her in a grade 3 class. Instead, she is in a self-contained GAINS (Giving Attention to Individual Needs) classroom at school with some integration into regular Grade 1 classes.

31The Child’s 11 year old half-brother, DG, has a developmental disability which includes cognitive limitations. He has an Individualized Education Plan (“IEP”) at school where he is in a SERR/RISE (Special Education Resource Room/Reaching Individual Success and Excellence) classroom with some integration into regular classes. He is receiving specialized speech services and takes psychotropic medication.

32The Child’s 9 year old half-brother, ShG, has self-regulation, social and emotional difficulties as well as learning exceptionalities. His behaviours can escalate quickly and are challenging to manage. He has lived in a therapeutic foster home since December 2016. At one time he was visiting DG weekly at the H home. That ended in July 2019 following an incident during a visit and has not resumed. Currently, he has video access weekly with the other three children.

Contact among the four children October 2016 to June 2019

33The contact between the four children after their apprehension in October 2016 was during joint access with their birthmother. Those visits were inconsistent due to the children’s birthmother often failing to attend. Access visits were not extended to the siblings on their own when the birthmother did not attend. Between May 2018 and August 2018, there were no access visits at all. When visits resumed in August 2018, they continued to be sporadic. After the February 2019 court order placing the children in extended society care the birthmother attended approximately one quarter of the scheduled visits.

34Starting in the summer of 2018, the Child’s half-sister, StG, was a frequent visitor to the Applicants’ home. These visits were initiated by the Applicants.

35The June 9, 2019 pool party at the H home was the second time that all four children were together outside their access with their birthmother.

The two families

36The Applicants are a married couple. JT works outside the home. CT is the primary caregiver for the children. The Applicants have been foster parents for the Respondent since April 2016. CT was also a foster parent in the United States before she moved to Canada.

37At the time of the hearing, the Applicants’ household included CT’s 26 year old son (who has significant disabilities) and the Applicants’ daughters AT (age 8) and KT (age 5). The two girls were born to CT’s older daughter, CHT, who CT adopted at the age of 8 or 10. AT and KT were apprehended from CHT’s care and subsequently adopted by the Applicants. The Applicants remain in contact with and offer support to CHT who lives in the western United States. CT visited her most recently in August 2019. JT’s adult three sons live outside the home.

38The Hs are a married couple. AH works outside the home. RH is the primary caregiver for the children. The Hs have been foster parents for the Respondent for 10 years.

39At the time of the hearing, the H household consisted of RH, AH, their 12 year old biological son, their 17 year old daughter (who they adopted on September 30, 2019 after fostering her for about six years), the Child’s half-sister, StG, the Child’s half-brother, DG, the Child, and another 12 year old male foster child. AH’s adult son lives outside the home.

The competing adoption plans and the Respondent’s decision

40The Applicants initially submitted a plan to adopt the Child then modified the plan to include the Child’s older half-sister, StG. They did not include DG in the plan because they knew he was in a longterm foster home.

41The H family submitted an adoption plan for the Child, for DG (their foster child) and for StG who lived in a different foster home. The Hs also expressed an interest in adopting ShG (who currently lives in a therapeutic foster home) if he becomes “adoption ready” at some point in the future.

42StG’s foster parent did not put forward an adoption plan.

43Contact logs recording the discussion at an April 11, 2019 permanency planning meeting indicate that initially the Respondent gave serious consideration to leaving the Child in the Applicants’ home. One worker noted:

[The Child] should probably remain at the [Applicants’ home] as that is the only family she has known, but will discuss at the next meeting.

44Another worker noted:

[The Child] is not being moved as the [Applicants’] home is the only home she has known.

45At the next permanency planning meeting, however, on May 24, 2019, the Respondent decided that it preferred the adoption plan put forward by the H family. The contact log notes from that meeting summarize the basis for the decision:

Decision by group: endorse plan put forward by the [H] foster home given three of the siblings can be adopted and raised together and [ShG] can continue to visit there with the option of discussing [ShG] ongoing with the [Hs].

46After being informed of the decision, the Applicants wrote to and met with the Respondent to express their concerns that the decision was not in the Child’s best interest. The Respondent nonetheless confirmed that it intended to proceed with the planned move of the Child.

47Some of the Respondent’s witnesses testified that they thought the Applicants supported the plan for the Child to be adopted by the Hs. The Applicants testified that they felt they had no choice but to go along with the transition plan because they did not know the proper options to challenge the Respondent’s decision. They had made their objections to the decision known and they tried to slow down the transition because they had concerns that it was going too fast and was traumatic for the Child. They did what they could to look out for the Child’s best interests. They felt, however, it was important for the siblings to have ongoing contact. They acknowledge that the Respondent may have interpreted their support for sibling visits as support for the H adoption plan.

48The Respondent’s witnesses confirmed that the deciding factor between the two families was that more of the siblings would live together under the H’s plan than under the Applicants’ plan.

The Child’s transition from the Applicants’ home to the H home

49The Child was placed with the Hs on September 17, 2019. The adoption supervisor explained the Child was placed as a foster child rather than on adoption probation because the Respondent did not yet have a statement of live birth or completed social history and there were openness order issues with the court.

50The first adoption worker who was involved for 11 days in August saw the Child twice at the H home and had no concerns. We give little weight to her evidence as her total time in the H home was 1.5 hours most of it spent talking to the adults.

51The Child’s worker also observed her twice at the H home prior to the September 17, 2019 placement. She reported that the Child appeared happy and relaxed and she observed positive interaction between the Child, DG and StG. The worker reported that on one occasion when the Child was upset she reached out to AH for comfort.

Post-placement visits

52The Child’s worker visited the Child at the Hs’ home in October on a day when she was going to have a post-placement visit with the Applicants. She noted that the Child was excited about seeing CT.

53The second adoption worker testified that the Child was doing well at the H home.

54The Applicants had several supervised post placement visits with the Child in the community. They testified they were surprised the visits had to be supervised since they had been caring for the Child for three years.

55The Child also had a full day unsupervised visit with the Applicants at their home on December 26, 2019.

THE LAW

56Our decision is guided by the definition of the best interests of the child set out in s. 179(2) of the Act:

(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.

ANALYSIS

57The CFSRB’s task when reviewing a decision to refuse an adoption application or remove a child from a long-term foster placement was explained by the Divisional Court in Family Youth & Child Services of Muskoka v. DM and CM, 2010 ONSC 6018 (“Muskoka”), as follows:

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.

58We considered all of the factors in s. 179(2) and found that the factors discussed below were most relevant to our determination. In reviewing the elements of the best interests test relevant to our decision we have grouped together closely related criteria.

The child’s views and wishes

59We have no independent evidence before us on this criterion. The Child did not have representation from the Office of the Children’s Lawyer. We heard conflicting reports about the Child expressing a desire to live in one home or the other. On the evidence before us, we are not able to make a finding regarding the Child’s views and wishes.

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

60JT described the Child as “brilliant”. He recounted how she was able to count to 20 when she was only a year and a half old. He would do grade 2 or grade 3 level math with her when she was less than three years old and “she would get it”. He recalls reading books with her, making lego buildings and then having fun destroying them. He testified that the Child loved doing puzzles and was “unbelievable”, better than he was at doing them.

61CT talked about the Child’s love of swimming and how she would take the Child swimming two to four times weekly. She describes her as a sassy girl who loves bows and the television show, Paw Patrol. She described the Child’s love of dance and having dance parties. The Child and AT loved taking selfies together – to the extent that CT could not fit any more photos on her phone.

62The Child was consistently described as shy, particularly on first meeting a new person.

63The Child’s worker and the Applicants’ resource worker had the greatest opportunity to observe the Child with the Applicants. Both were very positive in their description of the Applicants’ ability to meet all the Child’s needs.

64The resource worker testified that the Applicants did a great job meeting the Child’s physical, emotional and social needs, provided every resource possible for the Child and came to the worker with any needs the Child might have.

65We heard about two examples where the Applicants identified needs and sought out support. First, the Applicants identified the Child’s difficulty regulating and expressing her emotions, for example becoming upset if she was not served first at a meal. CT discussed these concerns with the Child’s worker at a September 2018 plan of care meeting. The worker then made a referral to Children First, an organization that provides support to young children with developmental or mental health needs. Second, when CT realized that she needed help in caring for the Child’s hair (as the Child was the first biracial child she had cared for), she approached the Respondent for assistance. As a result of CT’s initiative, a CAS worker presented a session on Black Hair Care for foster parents. The Child was the model for that session. CT has also sought and received assistance in caring for the Child’s hair from a close friend who is Black.

66The resource worker described the Applicants as a very loving family who really made a lot of progress with the Child, encouraging her to develop socially and in her speech. She confirmed that the Child referred to the Applicants as mom and papa. The only concern noted was some medical appointments being scheduled later than Ministry requirements.

67The resource worker testified that the Child was “fully integrated as part of [the Applicants’] family”. The September 2018 plan of care prepared by the Child’s worker states the Child is “definitely attached” to the Applicants.

68In contrast to these positive opinions, the second adoption worker was highly critical of CT. We give little weight to this adoption worker’s evidence. She was evasive and argumentative during her testimony. She had to be directed to answer questions put to her on cross examination. When presented with new information such as the situation when RH resisted letting CT enter his home to tuck in the Child, she was unwilling to modify her views. She displayed an unprofessional animus toward CT. Where there were two possible interpretations of CT’s actions, she interpreted those actions negatively. For example, she criticized CT for not being able to arrange a dinner for the two families on a day’s notice. She testified that, like RH, she felt that CT “had an agenda”. Rather than acting to ameliorate any tension between the two families (particularly between CT and RH), she appears to have exacerbated the situation. We do, however, recognize that legitimate concerns were raised by CT calling police to attend on September 15, 2019 and by her continuing to engage with the adoption worker while the Child was present. CT explained she asked the police to attend when the second adoption worker came to her home as she felt the worker had misrepresented CT’s actions in the past. Having observed the worker’s hostility toward CT we can understand CT’s desire to have an objective third party present. It was nonetheless an overreaction to involve the police.

69Both JT and CT described their relationship with former foster children in detail and with emotion. For example, JT described how he built trust with a foster child, P. When she entered the Applicants’ home she was terrified of men and would start to cry if JT or his sons came closer than five feet. He slowly moved “just a little bit closer” each day. P eventually stopped crying but was still not smiling. One morning, as he was leaving for work, JT stuck out his finger and P touched it. That became their routine each morning. Over the following couple of weeks she began to smile.

70CT explained that they followed the Child’s lead during the Child’s December 26, 2019 visit with the Applicants. Her older foster sister, AT, was crowding the Child “wanting to dote on her”. CT pulled AT aside and suggested she give the Child some space.

71In contrast to the Applicants’ descriptions of their relationships with former foster children, AH could not remember the names of foster children who had lived in her home during the past few years

72RH did not display an awareness of or sensitivity to the Child’s emotional needs. RH is recorded in the Child’s most recent plan of care as believing that “everyone used to cater to her as soon as they saw her shed a tear.” He dismissed any upset during the transition as normal behaviour for a child of her age.

73In an August 19, 2019 contact log, the Resource Worker for the Applicants recorded CT’s report of what happened when she arrived with the Child for the Child’s first overnight stay at the H home:

[The Child] has a stuffed Tiger named Tigee that she has had since she was a baby. She told [CT] that she has Mr. Unicorn at the [H]’s. [The Child] asked [CT] if she would tuck Tigee into her bed at the [H]’s and say good night. [CT] said they would ask Mr [RH] if this is ok. When they arrived at the house, [RH] answered the door and commented on the tiger. [CT] explained that [the Child] has had this tiger since she was an infant and she would like for [CT] to introduce Tigee to Mr. Unicorn and tuck him in. [RH] said “no I’m sorry but we’re not doing that today”. [CT] stated that [the Child] became very upset and started crying. [RH] then said “well I guess if you have to or if she needs it than (sic) it’s ok”. [CT] tucked Tigee into bed and [the Child] was fine.

74RH confirmed that this was an accurate account. He recalled “she was crying because I didn’t want you to come in. I seen her cry so then I said come in”. He explained he did not want CT to come into the house because he felt she “had an agenda”.

75The H’s position, discussed at paragraphs 92 through 97 below, that they are uncertain whether they will adopt DG and StG if the Child is returned to the Applicants is further evidence of an inability to prioritize the emotional wellbeing and best interests of children. Tellingly, when asked about the impact on DG if SG were removed, RH replied “we would have a lot of difficulties with [DG] emotionally and long term. “ His focus was not on DG but on “we”, namely himself and AH.

76During the transition period, CT was willing to cancel a planned trip to Oregon to assist her oldest daughter who was about to give birth if the Child was not able to travel with her. She did not want to leave the Child behind at a time when the Child needed emotional support. AH, on the other hand, took a 10 day trip with her own mother not long after the Child was placed in her home. She explained she wanted to have a mother/daughter trip while her mother, who had been ill, was still able to travel. The timing was unfortunate and left the Child with RH, whom AH said, the Child did not want to go to for assistance when first placed in their home.

77RH’s opinion that CT had an agenda seems to have originated at a June 2019 pool party held to celebrate DG’s birthday. AH and RH both testified disapprovingly that CT had stayed without asking their permission. This was the Child’s second visit to the H home. CT brought the Child and the Child’s half-sister who had stayed overnight at the Applicants’ home. RH testified that “we were mad” and thought it was a red flag that CT had not brought swimsuits. CT explained that she only found out that it was a pool party at the last minute. RH also believes that CT told DG during the pool party that he did not have to change his last name to H if he was adopted by the Hs. CT’s version of the conversation she had with DG was different. DG told her that his birthmother did not want him to change his name. CT said, “well buddy, that’s up to your parents’ decision, not your mom’s decision”. This is what she told the Respondent’s workers when they followed up with her after receiving a complaint about the pool party from the Hs.

78When it was suggested that the Applicants and the Hs have a meal together in the Applicants’ home to send a message to the child that both homes are supporting her, RH commented that he did not feel a visit longer than 15 minutes was necessary. He did not attend many of the postplacement visits between the Child and the Applicants. It appears that his desire to avoid contact with CT outweighed his motivation to jointly support the Child in her transition.

79RH also complained that when the two families did have dinner together, CT said DG wanted to move to her house. CT explained that “StG asked when she was coming to our house. I said we’ll see. DG asked if he could come too”. CT said, “sure buddy, you’ll have to talk to your mom and dad”.

80We accept CT’s version of both conversations. In her testimony, CT was willing to admit to errors. She acknowledged that her and JT’s actions could have led to confusion about whether they supported the adoption of the Child by the Hs. In contrast, RH was belligerent during his testimony, often vague, and had to be directed to answer questions during cross-examination. He was unwilling to change his fixed negative view of CT even when presented with new information.

81CT has the ability to be self-reflective about her parenting. She frankly acknowledged that she had made some mistakes in parenting her older daughter. At the same time, CT remains in contact with, visits and supports this daughter who has struggled with mental health issues including addictions.

82During an Adoption Planning Conference on September 6, 2019, CT became upset and temporarily left the room to get her emotions under control. On September 12, 2019, CT hung up during a teleconference in which she was informed that the Child would be moved to the H home on September 17, 2019. The Applicants had been led to believe that the move would be later. The second adoption worker characterized CT’s emotional responses as extreme behaviour that she had never seen in almost 30 years as an adoption worker. We find it difficult to believe that she has never seen a similar emotional reaction during a transition period. We agree with the Applicants’ resource worker, that it was understandable that CT would be emotional given the mixed messages that she was receiving from the Respondent.

83With respect to the Child’s physical care, the most recent plans of care note that although both the Child and her half-sister have received the flu shot in the past the Hs and their children do not get flu shots. We note the flu shot is consistently recommended by public health authorities and question why the Hs do not obtain flu shots for the children, but especially the Society’s wards in their care.

84In comparison to the Hs, we find that the Applicants have a greater sensitivity to and understanding of children’s needs in general and to the Child’s needs in particular. This is especially evident with respect to the Child’s emotional needs.

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

85The Child is biracial with Caucasian and Jamaican heritage. Neither the Applicants’ family nor the Hs’ family is a racial or ethnic match for the Child.

86The Respondent submits that RH buying books about the Child’s culture and traditions, as Christmas gifts, illustrates the Hs’ commitment to ensuring that she has exposure to her roots. In his testimony, RH provided no details about the books. He has not read the books himself. There was no evidence of any other efforts by the Hs to engage with the Child’s culture.

87As noted above, CT took the initiative to learn how to care for the Child’s hair and has a close friend, who is Black, who has assisted her. The Applicants’ Will includes a provision that this woman will be the care provider for their children in the event of the Applicants’ death.

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

88There is persuasive evidence before us that the Child developed a strong relationship with the Applicants and a secure place as a member of their family during the time she lived with them. She called CT “mom” and JT “poppa” and became very close to the Applicants’ daughters, KT and AT. She was a full participant in the family’s activities and travels.

89The Applicants’ resource worker testified that the Child’s attachment and bonding with the Applicants was solid. In the absence of a competing family, she would support the Applicants adopting the Child and her half-sister, StG.

90CT worried about whether the Child might feel less secure when KT came to live with the family. Those worries proved unfounded. Instead, the two girls were inseparable. It was only once the transition process began that the Child began to be aggressive toward KT. CT suggested the Child might have thought there was a connection between KT’s arrival and the Child’s move to the H home, such as feeling that she was being replaced.

91AH and RH testified that when the Child moved into their home she was initially shy and spent more time with AH than RH. They testified that the Child became closer to RH when AH went away for a ten day vacation in October 2019. We conclude that while the Child has developed some relationship with the Hs, that relationship is still relatively new and one established by need of having to depend on caregivers in the absence of those she knew as her parents; mom and papa.

92Our most significant concern about the security of the Child’s place in the H family arises from the Hs’ position that if they cannot adopt all three children (the Child, DG and StG) they may not adopt any of them.

93The H’s resource worker testified that the Hs told her that if they could not adopt the Child they would not adopt any of the children.

94RH testified that the Hs’ plans to adopt StG and DG were “up in the air. Not sure.” Under cross-examination, AH said “we want the sibs together with us or with you.” (with CT and JT).

95We found it difficult to understand this all or nothing approach, particularly with respect to DG, who has lived with the Hs for more than 3 years, and who RH called “my son”. RH testified that DG is “completely attached and bonded to us”. .

96RH testified that if the Child is adopted by the Applicants he might no longer be able to parent DG because sibling visits at the Applicants’ home would put DG “in harm’s way”. He stated that it would not be safe for DG to visit the Applicants’ home. When pressed to explain what he meant, he said he thought CT might say something to DG that would cause emotional harm. He gave as an example the alleged statement by CT at the pool party. As noted above, we prefer CT’s account of what she said to DG at the pool party. It is difficult to understand, even if RH’s concern were legitimate (and we find it is not), how the potential emotional harm of a comment from a non-family member could outweigh the undeniable trauma that DG will experience if he is not adopted by the H family. He has lived with them for more than three years. They told him in May 2019 that they were going to adopt him. The basis of their current hesitancy seems to be that they do not have the capacity to move past conflict between CT and RH at the expense of DG’s wellbeing.

97AH testified that it was still “a possibility” that the Hs would adopt DG. Unlike RH, she said she was open to working with the Applicants if it was in the Child’s best interests. RH acknowledged that it would be in the Child’s best interests to have access with the Applicants and the Applicants’ children but did not waver from his view that the Applicants’ home would not be safe.

98It is our view that RH either misunderstood or overreacted to CT’s actions. His negative perceptions of CT were reinforced by the second adoption worker. As noted above, CT’s account of her discussion with DG at the pool party seems more plausible. We find it entirely reasonable that she was reluctant to leave a three year old alone at a pool party with people she barely knew no matter how well that three year old could swim. Tight supervision around water is basic safety, especially for young children.

99The Applicants suggest that the Hs may have financial motives for adopting the Child and her siblings. The Hs currently receive a subsidy of $1,035 per month for their older adopted daughter under a provincial program intended to encourage the adoption of teenagers and sibling groups of two or more children. The same subsidy would be provided for each of the Child, DG, and StG if the Hs adopted them. The Hs would not receive a subsidy for DG if he was adopted alone. RH testified that they were not aware before they decided to adopt the group that there was a sibling subsidy.

100There is insufficient evidence before us to make a finding as to whether the sibling subsidy is a factor in the Hs’ desire to adopt all three children.

101StG and DG may not be able to live independently due to their cognitive challenges. CT explained that although they requested to adopt the Child’s half-sister, StG, they did not include her in these Applications because they did not think they could, given that she did not live with them. In response to a question from the panel, CT affirmed that the Applicants would also like to plan for StG permanently. They did not include DG in their request to the Respondent as they assumed he would be adopted by the Hs. Now that they are aware that the Hs might not proceed with DG’s adoption, “if we can make it work, JT and I would be willing to be an option for them.” “J[T] and I are open to looking at whatever we can do for the three sibs”.

102We conclude that the Child has developed and maintains a strong relationship with JT and CT whom she has viewed as her parents for almost three-quarters of her life. She was a secure member of their family. Her relationship with the Hs, while developing, does not have the same strong foundation and has been a relationship of necessity for her survival.

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,

103The Respondent’s position that it is in the Child’s best interests to be adopted by the Hs is based on its view that the bond between the Child and her half-siblings trumps all other considerations. It submits that it has a duty to support reunification. The Respondent presented no expert evidence to support its arguments about the importance of once separated siblings living in the same adoptive home other than a passing reference to a book and a TED Talk. The Respondent did not put any actual excerpts from the book or the TED Talk before us.

104The adoption supervisor stated that the Hs’ plan to adopt the Child, DG and StG was “an opportunity to put them back together”. She stated that it is best practice to keep siblings together. In her view it is less traumatic for siblings to grow up together and she believes children form identity with their siblings more than with their parents. She suggested that adopted children not placed with biological siblings develop anxiety and depression.

105The adoption supervisor acknowledged that the actual amount of contact the children had had with one another was not considered in May 2019 when the decision to choose the H plan was made. She also acknowledged that adoptive siblings as well as biological siblings can form a bond.

106We agree it is generally desirable for siblings to maintain contact with one another. The appropriate and achievable level of contact will vary depending on the ages and characteristics of the children. In many cases, it will be in the best interests of children who are related by biology and who have shared early experiences to live together.

107Neither plan before us would result in all four children living together in the foreseeable future. ShG lived in the H home for less than two months in 2016. He has not visited the H home since July 2019, following an incident where he “became difficult to manage and destructive”. His most recent plan of care notes: The [Hs] are not prepared at this time to have [ShG] back in their home for visits.” Given the level of his challenges it is questionable whether he will ever be “adoption ready”. He is in contact with his siblings through video-conferencing and some visits at the Respondent’s offices.

108Community is not defined in the Act. For almost three years, the inner circle of the Child’s community was the Applicants’ family, particularly her “mom”, “papa” and AT and KT. During that time she built strong bonds of trust and attachment.

109The Child’s community is broader than her biological half-siblings. The Applicants’ two young daughters are not biologically related to the Child. Nonetheless they form a significant part of her community to whom she has substantial emotional ties. She identifies KT and AT as her sisters as evidenced by an interaction JT described during one of StG’s visits to the Applicants’ home. StG started telling KT what the girls were going to do “in a forceful manner”. The Child said, “don’t talk to my sister that way”.

110The Applicants have parented the Child for most of her life. Despite the disruption caused by the Child’s move to the H home, that bond remains strong. The Child had a full day visit with the Applicants on December 26, 2019. JT testified that it was ”like she had never really left”. We have no confidence that the Child would be able to maintain these relationships if placed with the H family.

111The Child was one year old when she was separated from her siblings in 2016. From then until the summer of 2019, she only saw her half-brothers when they all had access with their birthmother. She had more contact with her half-sister who often visited the Applicants’ home. DG’s recent plan of care notes that since February 19, 2019 extended society care order, the birthmother has only attended one quarter of the scheduled visits. In its submissions, the Respondent acknowledges that it bears some responsibility for not maintaining visits between the children when there were gaps in birthmother access.

112The Respondent argues that the foster sibling relationship (i.e., the Child’s relationship with AT and KT) is not specifically recognized in the Act. In its closing submissions, the Respondent mentioned that a recent CFSRB case had commented on the importance of respecting a child’s connection to family of origin. This submission is unpersuasive as the Respondent gave us neither a copy of the case nor a citation which would have allowed us to compare that case to the facts of the one before us.

113The Child’s birthmother and her half-siblings have been in a more removed circle. RH and AH are relative newcomers to the Child’s community. The four months she has spent in the H home does not provide the same foundation as the almost three years she spent with the Applicants.

114The Applicants each acknowledged that the Child and her half-siblings love each other. They want to maintain that relationship. The Child has a particularly close relationship to her half-sister, StG, who often visited the Child at the Applicants’ home and even traveled with the Applicants’ family. The two half-sisters have spent significantly more time together than the Child and her half-brothers.

115Based on the evidence before us, we conclude that SG has significant emotional ties to the following members of her community: the Applicants, KT, and AT. We conclude that she is developing emotional ties to AH, RH and their children, SH and RHJr. She has a connection to her biological half-siblings that varies in intensity. She is closest to StG. It is important to maintain her connection to her biological half-siblings. While living in the same household with them might be ideal, we find that adoption by the Hs is not in the Child’s best interests. As a result, other ways must be found to maintain those connections and the Applicants are committed to doing so.

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

116The Respondent acknowledges that the length of time the Child was in the Applicants’ home “counts for something”. Indeed, at the April 2019 permanency planning meeting the Respondent’s inclination was to leave the Child in the Applicants’ care.

117Now, however, the Respondent argues that moving the Child from the Applicants’ home, while improper, was “a blessing in disguise” as it provides an opportunity to see how well she is doing there. It submits that she is now settled, stable and thriving in the H home. We disagree.

118We find that the disruption of the Child’s placement with the Applicants was traumatic for her as indicated by her behaviour during the transition. JT testified that he could see the traumatic effect on the Child of knowing she was being moved to another family. In his opinion, she knew what was happening but did not understand why it was happening. He described how the Child’s personality became more aggressive and emotional: “She and [foster sibling] KT were inseparable then all of a sudden, episodes where [the Child] would hit K or throw stuff, throwing tantrums in our home out of the blue, not her demeanour to do that.”

119During the transition new behaviours such as hitting, kicking, spitting, crying and having toileting accidents were observed. CT reported to the Respondent that the Child was “peeing her pants twice a day” and will even “go into the bathroom and stand in front of the toilet and pee herself”.

120The Child also became teary and whimpered when transitioning from one home to another during the transition period. She continued to display sadness when separating from the Applicants and their family during post placement visits.

121There is evidence that the Child continues to be unsettled. She was still having accidents at school in October 2019. The Child’s worker confirmed in the September 2018 plan of care and in her testimony that before the transition between the two homes began, the Child had been fully toilet trained.

122In our view, the Child has the best chance of long term continuity of care if she is returned to the Applicants. We find there is a risk that the Child, if left with the Hs, may face a disruption of that placement.

123As discussed above, we have serious concerns about whether the H family have the capacity and the commitment to parent the Child, her half-sister StG and her half-brother DG on a long term basis. The H’s uncertainty about continuing with their adoption plans for StG and particularly DG, raise serious questions about the strength of their commitment to these children. If the Hs are willing to reject DG who has lived with them for more than three years because they cannot get along with other adults, we question whether they will complete the adoption of the Child if real or perceived difficulties arise in their interactions with the Applicants during access visits.

124If the Respondent had given proper notice, the Child would have remained in the Applicants’ home until the conclusion of this proceeding. The double disruption the Child now faces of being moved first to the H home and then being returned to the Applicants’ home is a result of the Respondent’s action which breached the Act. Notwithstanding our disapproval of this action, our focus remains on the best interests of the Child. If the evidence had persuaded us that it was in the Child’s best interests to confirm the Respondent’s decisions, we would have done so. However, the totality of the evidence persuades us that it is in the Child’s best interests to be returned to the Applicants’ home and be adopted by them.

125Both JT and CT felt they had no choice but to go along with the transition plan because they did not know their options to challenge the Respondent’s decision. They tried to make their objections known but felt silenced by the professionals, the experts, they respected, that adoption by the Hs was the best thing for the Child. They tried to slow down the process because they had concerns that it was going too fast and was traumatic for the Child. They were trying to look out for the Child’s best interests.

126JT testified that at post placement visits it was difficult for the Child to “be herself” as she was “trying to appease both sides”. At the end of the visits, the Child would be upset or wet herself. The Child’s statement that she didn’t know what to say to a worker during a post-placement visit reflects her confusion and demands on her that surpassed her developmental stage.

127The Applicants acknowledge the importance of the Child having a relationship with her half-siblings. JT stated that if the Child returns to the Applicants’ home “we would do everything to try to give her access to her siblings”.

128In our view, the return to the Applicants’ home will be easier for the Child than her transition to the H home. In essence, she will be returning to her home – the place where she has spent the majority of her life – and to the family with whom she is most closely attached. The Child had a successful full day visit with the Applicants during the Christmas holidays. In JT’s words “it was like she had never really left. She just became [the Child] again at our house. It was the first time she didn’t have a CAS worker or [AH] with her. It was relaxing for her to just be [herself].”

129In order to assist the Child in her transition back to the Applicants’ home our Order directs the Respondent to involve the Children First worker and/or other appropriate professionals. The Children First worker worked with the Applicants while the Child was in their home and has also provided advice to the H family on how to help the Child during the transition to their home. We also recommend that the Respondent fund counselling for the Child and other members of the two families, as required.

CONCLUSION

130For all of the reasons set out above, we conclude that it is in the best interests of SG to be returned to the Applicants’ home and for the adoption process to proceed expeditiously.

131As noted in Muskoka, above, the CFSRB has broad jurisdiction to determine what actions are in the best interests of a Child in applications under section 109 and 192 of the Act. Our Order addresses the next steps we have concluded must be taken in the Child’s best interests. In addition, we make a number of recommendations with respect to future practices by the Respondent and amelioration of trauma caused to both families by this experience.

RECOMMENDATIONS

[132] We make the following recommendations:

• The Respondent implement training to ensure that all staff involved in decisions to remove a child from a foster home or to refuse an adoption application are aware of the notice requirements under the Act.
• The second adoption worker have no further involvement with either the Applicants or the H family.
• The Respondent fund counselling for all the children involved and, if requested, for the adults as required.
• The Respondent provide appropriate support and counselling to the H family in order that they feel comfortable in proceeding with DG’s adoption.
• The Respondent provide the necessary support to repair relations between the Applicants and the Hs in order that meaningful access can be maintained between the child and her half-siblings.
• The Respondents give careful consideration to an application from the Applicants to adopt StG if the Hs decide not to proceed with her adoption.

ORDER

1. The Respondent is directed to return SG to the Applicants’ home forthwith and, in any event, by no later than January 14, 2020. The Respondent shall involve the Children First worker and/or any other appropriate professionals in order to assist with the transition.
2. The Respondent’s decision refusing the Applicants’ application to adopt SG is rescinded.
3. The Respondent is directed to place SG on adoption probation as soon as she is returned to the Applicants’ home.
4. The Respondent is directed to proceed with the Applicants’ adoption application expeditiously.
5. The CFSRB will remain seized with respect to the implementation of this Order.

CONFIDENTIALITY ORDER

133Pursuant 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 on-line. 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.