S.G. and T.G. v. Children's Aid Society of Hamilton and The Squamish Nation of British Columbia, 2002 ONSCDC 2846

WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.—(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

85.—(3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Hamilton Registry No. C2162/02

DATE: 2002-12-16

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

S.G. and T.G.,,

Applicants,

— AND —

CHILDREN’S AID SOCIETY OF HAMILTON and THE SQUAMISH NATION OF BRITISH COLUMBIA,,

Respondent(s),

Before Justice George Czutrin

Reasons for Judgment released on 16 December 2002

ADMINISTRATIVE LAW — Judicial review — Availability — General — Judicial review of children’s aid society’s decision to remove child from foster parents’ home — Aboriginal Crown ward had resided for almost 2 years with foster parents who were considered adoption candidates — Society changed its mind when native band in British Columbia showed interest in child’s long-term placement — Just weeks shy of 2-year period, society planned to remove child from foster home and to send her to British Columbia — Foster parents properly sought administrative review of society’s decision under section 68 of Child and Family Services Act, but society was concerned that, by time review was heard, child would have been in foster parents’ care for 2 years and that rights under subsection 61(7) and subsection 61(8) would then accrue to foster parents — Society decided to proceed with plan despite prospect of ongoing administrative review — Foster parents’ made emergency application under Judicial Review Procedures Act for judicial review of society’s decision to place child out of Ontario or for order prohibiting child’s removal from their care pending completion of administrative review — Court found that society’s haste was motivated more by concern over foster parents’ acquisition of rights than by child’s welfare — Child’s hasty removal from Ontario pending administrative review could render that review potentially meaningless if jurisdiction over child were lost and, by upsetting status quo and child’s long-term stability, could be contrary to child’s best interest — Foster parents entitled to judicial review — Court issued interim order forbidding society’s removal of child from care of foster parents pending completion of administrative review and of judicial review.

CHILD PROTECTION — General — Children’s aid society — Judicial review — Availability — Society’s decision to remove child from foster parents’ home — Aboriginal Crown ward had resided for almost 2 years with foster parents who were considered adoption candidates — Society changed its mind when native band in British Columbia showed interest in child’s long-term placement — Just weeks shy of 2-year period, society planned to remove child from foster home and to send her to British Columbia — Foster parents properly sought administrative review of society’s decision under section 68 of Child and Family Services Act, but society was concerned that, by time review was heard, child would have been in foster parents’ care for 2 years and that rights under subsection 61(7) and subsection 61(8) would then accrue to foster parents — Society decided to proceed with plan despite prospect of ongoing administrative review — Foster parents’ made emergency application under Judicial Review Procedures Act for judicial review of society’s decision to place child out of Ontario or for order prohibiting child’s removal from their care pending completion of administrative review — Court found that society’s haste was motivated more by concern over foster parents’ acquisition of rights than by child’s welfare — Child’s hasty removal from Ontario pending administrative review could render that review potentially meaningless if jurisdiction over child were lost and, by upsetting status quo and child’s long-term stability, could be contrary to child’s best interest — Foster parents entitled to judicial review — Court issued interim order forbidding society’s removal of child from care of foster parents pending completion of administrative review and of judicial review.

STATUTES AND REGULATIONS CITED

Child and Family Services Act, R.S.O. 1990, c. C-11 [as amended], section 1, subsection 39(3), section 61, subsection 61(4), subsection 61(5), subsection 61(6), subsection 61(7), subsection 61(8), section 68, clause 70(1)(a), section 97 and section 144.

Courts of Justice Act, R.S.O. 1990, c. C-43 [as amended], section 96.

Judicial Review Procedures Act, R.S.O. 1990, c. J-1 [as amended], section 1, subsection 2(1), section 5 and subsection 6(2).

CASES CITED

Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 243 N.R. 22, 174 D.L.R. (4th) 193, 14 Admin. L.R. (3d) 173, 1 Imm. L.R. (3d) 1, [1999] S.C.J. No. 39.

Beson and Beson v. Director of Child Welfare for Newfoundland, 1982 32 (SCC), [1982] 2 S.C.R. 716, 44 N.R. 602, 39 Nfld. & P.E.I.R. 246, 111 A.P.R. 246, 142 D.L.R. (3d) 20, 30 R.F.L. (2d) 438.

Catholic Children’s Aid Society of Metro Toronto v. M. (Cidalia) (1993), 1993 8484 (ON CA), 13 O.R. (3d) 227, 101 D.L.R. (4th) 744, 47 R.F.L. (3d) 109, [1993] O.J. No. 970, 1993 CarswellOnt 332 (Ont. C.A.); affirmed at Catholic Children’s Aid Society of Metropolitan Toronto v. M. (Cidalia), 1994 83 (SCC), [1994] 2 S.C.R. 165, 165 N.R. 161, 71 O.A.C. 81, 113 D.L.R. (4th) 321, 2 R.F.L. (4th) 313, [1994] S.C.J. No. 37, 1994 CarswellOnt 376.

Children’s Aid Society of Dufferin County v. R. (James) (2002), 2002 45514 (ON CJ), 118 A.C.W.S. (3d) 78, [2002] O.J. No. 4319, 2002 CarswellOnt 3821 (Ont. C.J.).

Children’s Aid Society of London and Middlesex v. M.(J.), P.(K.), V.(M.) and Garden River First Nation (2000), 2000 22887 (ON SC), 94 A.C.W.S. (3d) 1138, [2000] O.J. No. 331, 2000 CarswellOnt 310 (Ont. Fam. Ct.).

Children’s Aid Society of Metropolitan Toronto v. Dizio (1990), 1990 6917 (ON SC), 75 O.R. (2d) 92, 27 R.F.L. (3d) 311, [1990] O.J. No. 1335 (Ont. Div. Ct.).

Children’s Aid Society of Metropolitan Toronto v. S. (Donna) and S. (Fred) (1991), 1991 4537 (ON CJ), 28 A.C.W.S. (3d) 205, 11 L.W.C.D. 424, [1991] O.J. No. 1384 (Ont. Prov. Div.).

Children’s Aid Society of Peel Region v. O. (Wendy), B. (Rashpal Singh), B. (Harbugan) and B. (Surinder). (2002), 2002 46211 (ON CJ), 112 A.C.W.S. (3d) 705, [2002] O.J. No. 1099, 2002 CarswellOnt 885 (Ont. C.J.).

E. v. Eve, 1986 36 (SCC), [1986] 2 S.C.R. 388, 71 N.R. 1, 61 Nfld. & P.E.I.R. 273, 185 A.P.R. 273, 31 D.L.R. (4th) 1, 13 C.P.C. (2d) 6, [1986] S.C.J. No. 60.

G.(C.) and G.(M.) v. Catholic Children’s Aid Society of Hamilton-Wentworth (1998), 1998 3391 (ON CA), 40 O.R. (3d) 334, 110 O.A.C. 338, 161 D.L.R. (4th) 466, 39 R.F.L. (4th) 389, [1998] O.J. No. 2546, 1998 CarswellOnt 2578 (Ont. C.A.).

Karavos v. Toronto (City) and Gillies, 1947 326 (ON CA), [1948] O.W.N. 17, [1948] 3 D.L.R. 294, [1947] O.J. No. 331 (Ont. C.A.).

L.(R.) and L.(T.) v. Children’s Aid Society of Niagara Region, [2002] O.J. No. 4481 (Ont. S.C.).

Re McQuaid (1980), 1980 3799 (PE PC), 28 Nfld. & P.E.I.R. 468, 79 A.P.R. 468, 20 R.F.L. (2d) 292, [1980] P.E.I.J. No. 7 (P.E.I. Fam. Div.).

Nicholson v. Haldimand-Norfolk Reg. Police Commissioners, 1978 24 (SCC), [1979] 1 S.C.R. 311, 23 N.R. 410, 88 D.L.R. (3d) 671.

Racine and Racine v. Woods, 1983 27 (SCC), [1983] 2 S.C.R. 173, 48 N.R. 362, 24 Man. R. (2d) 314, [1984] 1 W.W.R. 1, 1 D.L.R. (4th) 193, 36 R.F.L. (2d) 1, [1984] 1 C.N.L.R. 161, 1983 CarswellMan 147.

Thunder Bay Seaway Non-Profit Apartments v. Thunder Bay (City) (1991), 1991 7100 (ON SC), 5 O.R. (3d) 667, 53 O.A.C. 176, 85 D.L.R. (4th) 229, 7 M.P.L.R. (2d) 276, [1991] O.J. No. 1963 (Ont. Div. Ct.).

Re Triskow and Children’s Protection Act (1918), 1918 537 (AB SCAD), 14 Alta. L.R. 46, [1918] 3 W.W.R. 512, 43 D.L.R. 452 (Alta. App. Div.).

Re Webb and Ontario Housing Corporation (1978), 1978 1490 (ON CA), 22 O.R. (2d) 257, 93 D.L.R. (3d) 187 (Ont. C.A.).

Westell v. Jarrell and Cyprick (1981), 1981 1644 (ON CA), 34 O.R. (2d) 44, 130 D.L.R. (3d) 418, 24 R.F.L. (2d) 342, 1981 CarswellOnt 297 (Ont. C.A.), sub nom. C.G.W. v. M.J. and A.C.

White v. White and Family and Children’s Services of London and Middlesex (1982), 1982 4764 (ON CJ), 28 R.F.L. (2d) 302, [1982] O.J. No. 641 (Ont. Prov. Ct., Fam. Div.).

Yule Inc. v. Atlantic Pizza Delight Franchise (1968) Ltd. et al. (1977), 1977 1198 (ON SC), 17 O.R. (2d) 505, 80 D.L.R. (3d) 725, 35 C.P.R. (2d) 273 (Ont. Div. Ct.).

Kathleen A. Baker .......................................................................... for the applicant foster parents

David J. Feliciant .................................................................................... for the respondent society

Ian R. Mang .......................... for the Squamish Nation of British Columbia (Ayas Men Men Family

and Children’s Services — Squamish Nation Social Development)

For subsequent proceedings, see:

● motion for removal of Office of Children’s Lawyer dismissed: R.(C.), R.(M.), G.(S.) and G.(T.) v. Children’s Aid Society of Hamilton and the Squamish Nation of British Columbia (No. 1) (2004), 129 A.C.W.S. (3d) 1149, 17 O.F.L.R. 236, [2004] O.J. No. 1251 (Ont. Fam. Ct.), per Justice George Czutrin;

● ruling that Office of Children’s Lawyer is bound by ordinary rules requiring pre-trial document disclosure: R.(C.), R.(M.), G.(S.) and G.(T.) v. Children’s Aid Society of Hamilton and the Squamish Nation of British Columbia (No. 2) (2004), 2004 34407 (ON SC), 130 A.C.W.S. (3d) 320, 17 O.F.L.R. 240, [2004] O.J. No. 1449, 2004 CarswellOnt 1414 (Ont. Fam. Ct.), per Justice George Czutrin;

● ruling on extent of privilege enjoyed by Office of Children’s Lawyer and staff: R.(C.), R.(M.), G.(S.) and G.(T.) v. Children’s Aid Society of Hamilton and the Squamish Nation of British Columbia (No. 3) (2004), 130 A.C.W.S. (3d) 762, [2004] O.J. No. 1634, 2004 CarswellOnt 1551 (Ont. Fam. Ct.), per Justice George Czutrin.

[1] JUSTICE CZUTRIN:— The applicants (foster parents) seek, on an urgent basis, judicial review of the Children’s Aid Society of Hamilton’s (the “society”) decision placing K.L. (born on 20 December 2000) with the respondent Squamish First Nation in British Columbia (the “Squamish First Nation”) or an order preventing the child from being removed from their care, pending the completion of a review under section 68 or section 144 review of the Child and Family Services Act, R.S.O. 1990, c. C-11 (as amended) (the “Act”).

[2] Although the society and Squamish First Nation submitted that this was not a case for judicial review, all counsel agreed that I had jurisdiction and it was appropriate for me to proceed and consider the issues under subsection 6(2) of the Judicial Review Procedures Act, R.S.O. 1990, c. J-1 (as amended):

(2) Application to judge of Ontario Court (General Division)—. An application for judicial review may be made to the Ontario Court (General Division) with leave of a judge thereof, which may be granted at the hearing of the application, where it is made to appear to the judge that the case is one of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice.

[3] The child K.L. was made a Crown ward on 8 November 2001 and she has resided with the foster parents since 29 December 2000.

[4] The issues for me are whether the foster parents have a right to seek judicial review and should I grant interim relief preventing the child’s removal from the foster parents and Ontario.

[5] The foster parents completed documents required by the society to begin the adoption process of K.L. The foster parents were assigned an adoption worker, but they have never been contacted by the worker, except for a letter of introduction.

[6] The foster parents became aware that, in May of 2002, the Squamish First Nation came forward with a plan to have K.L. and one of her siblings sent to British Columbia and placed with an extended family member. According to the foster parents, the Squamish First Nation then realized the special needs of the girls and decided the extended family plan was not viable. They were informed that the Squamish First Nation presented a plan that three siblings would go to a temporary foster placement in Squamish B.C. It was their understanding that there was no specific adoptive family identified for K.L.

[7] After correspondence between the society and the Squamish First Nation asking for clarification of the position of the Squamish Fist Nation, the Squamish First Nation wrote to the society on 4 October 2002 as follows:

You asked that I write and clarify our long-term plan for the children. Our plan is for the children to come and live with [Ms. L.L.]. As I identified in our updated home study, she has proven herself to be committed and long-term resource. The needs of the children will determine how long they will be with [Ms. L.L.]. As I wrote in my letter to you of August 29th, the position of the band is that we do long-term guardianship planning involving, involving extended family, rather than adoption.

And later:

If there were a stable family members in the future whom the girls would like to reside with, we would certainly look at that as being the best possible environment, because it is family.

[8] Once the foster parents knew that the society had intentions to remove the child from their care, they began taking steps to see what if anything they could do to prevent it.

[9] The foster parents filed an affidavit and stated:

3. We are the foster parents of [K.L.] who was born December 20th, 2000. [K.L.] was apprehended from the parents while still in hospital after her birth. She was placed with us on December 29th, 2000 and has remained in our care continuously since that time.

4. [K.L.’s] mother is Native Canadian and a member of the Squamish Nation in British Columbia. [K.L.’s] father was not Native.

[10] The supervisor of the adoption unit, previously the society worker assigned to K.L. and her siblings, filed an affidavit dated 2 December 2002:

7. Once the decision was made to pursue placement of the children with the Squamish Nation, this Society requested that the British Columbia Ministry for Children and Families assume guardianship of the children. The Society’s senior counsel wrote to the Ministry on October 31, 2002 and the Ministry replied on November 20, 2002, formally accepting care, custody and guardianship of the children. . . .

8. I have been careful to fully consider the needs of the children and consider the merits of the plan proposed by the Band. The Society has not acted in a manner that is capricious, thoughtless, or malicious. The Society will be sending the child [K.L.’s] siblings to British Columbia. Contrary to the suggestion in [Ms. S.G.’s] affidavit, that plan is not in doubt.

[11] According to the foster parents, after meeting with the Executive Director of the Society, he advised, that if they did not agree with the decision to have the child taken to British Columbia, they should consider a review under section 144 of the Act by writing to the Ministry.

[12] On 16 October 2002, by registered mail, the foster parents wrote to the Hamilton Niagara Regional Office of the Ministry of Community Family and Children’s Services, Programmes Supervisor.

[13] They wrote:

We write to you today to request a SECTION 144 REVIEW regarding [K.L.]. We know that you are familiar with this case.

We trust that you will be able to expatiate this request in a timely fashion prior to [K.L.’s] moving from our home.

[14] In the meantime, senior counsel for the society wrote a letter dated 31 October 2002 to the Interim Chief Executive Officer of the Ministry of Children and Family Development in Vancouver, British Columbia marked “urgent”:

Please find enclosed original certified copy of the Order of the Honourable Justice Mendes da Costa dated April 24th, 2002. The certified copy was obtained on September 20th, 2002. I can confirm that this is a valid and existing order and has not been varied, amended or set aside. Other than providing you with a certified copy, which is enclosed, there is no mechanism in our Court to obtain any other form of certification. We retain the original order in our files should you require it at some future date.

I understand that a plan has been developed whereby the British Columbia Ministry of Children and Family Development will be assuming guardianship of these children who should be placed with family within the Squamish Nation. I also understand that a representative of the Squamish Nation will be coming to Ontario to assist in the transition process.

I would ask that you confirm that the Ministry of Children and Family Development will accept guardianship of these children. I would also remind the interested parties that guardianship should be confirmed and the children placed in British Columbia no later than December 1, 2002. In the event the process goes beyond this date, the child, [K.L.] will have been placed in the same foster home for two years, which would entitle the foster parents to a hearing on the decision to remove the child from their home, which would cause significant delay in the process, or even result in an order preventing placement.

[15] Ministry of Children and Family Development of British Columbia responded in a letter dated 20 November 2002:

I am in receipt of your letter of October 31. I wish to confirm that the Ministry of Children and Family Development (MCFD) will accept care, custody and guardianship of these children, under Section 100.2 of the Child, Family and Community Service Act of British Columbia. MCFD plans to place the above named children, along with an infant sibling, with a foster family of the Squamish Nation. A Squamish Nation representative will be going again to Ontario to bring the children to British Columbia.

[16] On 13 November 2002, the Ontario Ministry of Community Family and Children’s Services wrote to the foster parents:

Re: Section 144 Review

This letter is in response to your letter dated October 16, 2002 requesting a Section 144 review regarding [K.L.]. I apologize for the tardiness in my response, however I understand your family has recently experienced some tragedy and I did not want to bother you at that time.

Please be advised that before the Director of Child Welfare considers a Section 144, a full complaints process must be undertaken through the Children’s Aid Society. By way of return copy of this letter to Dominic Verticchio, I am advising the society that a full complaints process must first be undertaken at the Children’s Aid Society level. Please advise the Children’s Aid Society that you wish to undertake this process.

Following the outcome of that process, you may wish to consider a Section 144 request. After careful review of the findings of the society, the request will then be considered. Please be advised that the request will be placed under consideration at that time. This is not a commitment to a section review at this time.

[17] The foster parents deposed:

24. We were under the impression from our conversation with Mr. Verticchio that we had exhausted the internal review process within the Society. It would appear from Ms. O’Shea’s letter this is not so. We have now requested a meeting with the Board of Directors for the Society pursuant to section 68 of the Child and Family Services Act.

25. In the letter requesting a meeting with the Board of Directors of the Hamilton Society, our counsel requested the Society’s undertaking to not move [K.L.] from our care prior to the exhaustion of the Society’s internal review process and any subsequent section 144 review by a Director. This letter requests that this undertaking be provided no later than Monday November 25th, 2002 at 4:30p.m. and indicates that in the absence of such undertaking, an Application for judicial review and Motion for interim injunction will be commenced on short notice.

[18] The foster parents received no undertaking and that is why this matter has proceeded to court as an urgent matter. The society and the Squamish First Nation are anxious to have this matter determined prior to 29 December 2002, because of the provisions of the Act that give further rights to the foster parents at that time under section 61:

● Subsection 61(7) states:

(7) Rights of foster parents in certain cases.— Where a child is a Crown ward and has lived with a foster parent continuously for two years, the society shall not remove the child under subsection (6) without first giving the foster parent ten days notice of the proposed removal and of his or her right to a review under section 68.

● Subsection 61(8) provides:

(8) Time for review.— Where a foster parent requests a review under section 68 within ten days of receiving a notice under subsection (7), the society shall not remove the child until the review and any further review by a Director have been completed and unless the society’s board of directors or the Director, as the case may be, recommend that the child be removed.

● Subsection 61(5) declares:

(5) Rights of child, parent and foster parent.— The society having care of a child shall ensure that,

(a) the child is afforded all the rights referred to in Part V (Rights of Children); and

(b) the wishes of any parent who is entitled to access to the child and, where the child is a Crown ward, of any foster parent with whom the child has lived continuously for two years are taken into account in the society’s major decisions concerning the child.

[19] Is the society’s decision to have the child removed from the foster parents and sent to British Columbia a matter for judicial review and should I grant an interim order preventing the move proposed by the society?

[20] The foster parents asked the society to review its position and wanted to have the matter determined by the society. The Executive Director of the society referred them to section 144. They requested a review under section 144 quickly thereafter. They did not delay this application to gain new rights.

[21] It has taken the society over six months to come to the decision of sending the child to British Columbia and nearly a year after the Crown wardship order. Had the society decided this issue much earlier, the foster parents, possibly gaining new rights by 29 December 2002, would not be a factor now considered urgent by the society. The urgency is for the society and the Squamish First Nation. The urgency is more to do with attempting to avoid new rights for the foster parents rather than best interests of the child, given how long she has already waited. Any change for the child, although generally resolving issues as quickly and reasonable would be in her best interest, should not be rushed, if the result is a change, upsetting a long-standing status quo in the circumstances of this case. Regardless of any new rights the foster parents may gain by 29 December 2002, they have rights under section 68 and section 144. Section 68 states:

68. Society review procedure.—(1) A society shall establish a written review procedure, which shall be approved by a Director, for hearing and dealing with complaints by any person regarding services sought or received from the society, and shall make the review procedure available to any person on request.

(2) Idem.— A review procedure established under subsection (1), shall include an opportunity for the person making the complaint to be heard by the society’s board of directors.

(3) Further review by Director.— A person who makes a complaint and is not satisfied with the response of the society’s board of directors may have the matter reviewed by a Director.

[22] It was the society’s opinion that the request under section 144 was independent of the internal review procedure under section 68 and thus, the director of the society instructed the foster parents to make the request under section 144.

[23] The Ministry, however, took the position that before it can consider whether to accept a review under section 144 for consideration, a request under section 68 must be made and completed.

[24] Any person may make a request under section 68 regarding services sought or received from the society. The society cannot move a child from a foster parent when the child has been in their care continuously for two years under subsection 61(7), without first giving the foster parent ten days notice of the proposed removal and of his or her right to a review under section 68. What the foster parents gain, as a result of the two years, is the entitlement to ten days notice and being made aware of the right to review, not the right to review.

[25] Subsection 61(8) states:

(8) Time for review.— Where a foster parent requests a review under section 68 within ten days of receiving a notice under subsection (7), the society shall not remove the child until the review and any further review by a Director have been completed and unless the society’s board of directors or the Director, as the case may be, recommend that the child be removed.

[26] This subsection restricts the society from removing a child only after the notice of a right to review and the request for a review is made. Since the foster parents did not have the right to notice, as of the date of my hearing the matter, unless I grant an order prohibiting the move, the legislation does not prohibit the society from removing the child from the foster parents.

[27] Wishes of the foster parents are to be taken into account in the society’s major decisions concerning the child, if the child has lived with them continuously for two years.

[28] There are some further restrictions with respect to the change of placement of a child under subsection 61(6) (emphasis added):

(6) Change of placement.— The society having care of a child may remove the child from a foster home or other residential placement where, in the opinion of a Director or local director, it is in the child’s best interests to do so.

In addition, subsection 61(4) asserts (emphasis added):

(4) Placement outside or removal from Ontario.— The society having care of a child shall not place the child outside Ontario or permit a person to remove the child from Ontario permanently unless a Director is satisfied that extraordinary circumstances justify the placement or removal.

[29] The issue of what rights foster parents have has received some court consideration.

[30] Put simply, the position of the Squamish First Nation and of the society is that there is no right of the foster parents to seek a judicial review, as there is no remedy available to them. They cannot seek custody or relief outside of any rights they have under the Act. They cannot compel the society to have the child remain in their care or be adopted by them.

[31] The foster parents submit that they are entitled to a review of the society’s decision as provided for under the Act. They have yet to have the review. The society’s decision must be made consistent with the Act and its paramount objective — the child’s best interests. It is the society’s failure to complete the review and its decision to remove the child that the foster parents are seeking to have judicially reviewed. They are not seeking an order for custody independent of the Act. They want the society to make its decision consistent with the objectives of the Act and to have it exercise its decision making in a fair manner and as prescribed by the Act.

[32] Subsection 2(1) of the Judicial Review Procedures Act states:

2. Applications for judicial review.—(1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:

3. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.

4. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.

Statutory power is defined under section 1:

“statutory power” means a power or right conferred by or under a statute,

(a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation,

(b) to exercise a statutory power of decision,

(c) to require any person or party to do or to refrain from doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing,

(d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party;

“statutory power of decision” means a power or right conferred by or under a statute to make a decision deciding or prescribing,

(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or

(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,

and includes the powers of an inferior court.

[33] Counsel for the foster parents submits that the society is exercising statutory powers of decision in this case. She relies on section 1, section 61 and section 68 of the Child and Family Services Act.

[34] After a Crown wardship order, a court cannot direct the placement of a child by the society. This child was made a Crown ward without access. The Court of Appeal in C.G. and M.G. v. Catholic Children’s Aid Society of Hamilton-Wentworth (1998), 1998 3391 (ON CA), 40 O.R. (3d) 334, 110 O.A.C. 338, 161 D.L.R. (4th) 466, 39 R.F.L. (4th) 389, [1998] O.J. No. 2546, 1998 CarswellOnt 2578, dealt with the issue of whether foster parents may bring proceedings for custody outside of their rights under the Act. At paragraph [13], Appeals Justices Marc Rosenberg sated:

[13] It is also important to understand the role of the society and the foster parent under Part III in relation to Crown wards. Pursuant to s. 63, where a child is made a Crown ward the Crown has the rights and responsibilities of a parent. The Crown’s powers, duties and obligations, however, are exercised by the society caring for the child (except for those powers, duties and obligations assigned by the Act to a Director). Pursuant to s. 61, an obligation of the society is to choose a residential placement for the child and supervise that placement. The placement of the children involved in this case was, of course, in the foster home of the respondents.

[35] Writing for the court, Appeals Justices Rosenberg pointed out (my emphasis added):

[24] It seems to me that the real complaint of the respondents, and it was reflected in the submissions on behalf of the respondents in this court, is that Part III of the Child and Family Services Act operates to deprive them of their day in court to show, if they could, that it is in the best interests of the children that they obtain custody. To answer that question requires a brief examination of the place of foster parents in the Part III regime. . . . In effect, foster parents provide care to Crown wards as delegates of the society. It is as delegates of the society that foster parents come in contact with Crown wards and develop relationships, sometimes long-term relationships, as did these respondents with these children. The fact that the Legislature has carefully circumscribed the rights of foster parents suggests implementation of a policy to prevent the foster parents from potentially acquiring an advantageous position to that of the natural parents. The fact that, in a particular case, the natural parents are no longer on the scene and there is little risk of a conflict between the natural parents and the society’s delegates does not warrant departing from the clear words of the statute as an expression of that intention. To permit the respondents to apply for and obtain custody under the Children’s Law Reform Act would alter the careful legislative design of the role of foster parents.

[25] Moreover, and I will return to this below when considering the parens patriae jurisdiction, the respondents were not deprived of their “day in court”, at least in the sense that they were not deprived of a meaningful avenue of review. The Legislature has demonstrated sensitivity to the circumstances of foster parents who have had care of the same children for an extended period of time. The statute gives them a right to apply for review of a decision that has the effect of removing the children from their care. What it does not do is give them a right to circumvent the comprehensive provisions of the Act and apply for custody.

[36] Discussing the parens patriae jurisdiction, Appeals Justices Rosenberg went (my emphasis added by bold italics):

[28] Since he found that the respondents could maintain their application under s. 21 of the Children’s Law Reform Act, the motions judge did not find it necessary to consider whether the respondents could invoke the court’s parens patriae jurisdiction to support their custody application. The motions judge invoked that jurisdiction only in a very limited way to require the society to hold a status review hearing. However, in this court, as before the motions judge, the respondents argued that even if they could not apply under s. 21 they could rely on the parens patriae jurisdiction. In my view, in the circumstances of this case, that jurisdiction is not available.

[29] In Beson and Beson v. Director of Child Welfare for Newfoundland, 1982 32 (SCC), [1982] 2 S.C.R. 716, 30 R.F.L. (2d) 438, the court considered the parens patriae jurisdiction in the context of adoption proceedings. Wilson J., speaking for the court, referred with apparent approval to the decision of the House of Lords in A. v. Liverpool City Council, [1981] 2 All E.R. 385. She summarized the holding in that case as follows at page 445:

It would seem then that in England the wardship jurisdiction of the court (parens patriae) has not been ousted by the existence of legislation entrusting the care and custody of children to local authorities. It is, however, confined to “gaps” in the legislation and to judicial review.

[30] Wilson J. then considered the above two approaches, namely legislative gap and judicial review. She found a legislative gap in that the prospective adoptive parents had no appeal to the adoption appeal board when the Director of Child Welfare removed the child just one week short of the six- month period of residence required for an adoption to be completed. The child had been removed as a result of allegations of child abuse later found to be totally unfounded. Wilson J. also held that it would have been open to the superior court to have proceeded with judicial review of the decision of the Director in the exercise of the parens patriae jurisdiction because of the Director’s failure to treat the appellants fairly. . . .

[31] In my view, neither the gap nor the judicial review approach justify the intervention of the courts by way of the parens patriae jurisdiction in this case. In Beson and Beson, supra, at pp. 444-445, Wilson J. quoted the following excerpt from the judgment of Lord Wilberforce in the Liverpool case:

But in some instances there may be an area of concern to which the powers of the local authority, limited as they are by statute, do not extend. Sometimes the local authority itself may invite the supplementary assistance of the court. Then the wardship may be continued with a view to action by the court. The court’s general inherent power is always available to fill gaps or to supplement the powers of the local authority; what it will not do (except by way of judicial review where appropriate) is to supervise the exercise of discretion within the field committed by statute to the local authority. [Italics added by Wilson J.]

[32] There is no gap that needs filling in this legislative scheme. The respondents had an avenue of review open to them through s. 68. It was not a route that would have led to custodial rights over the children, but as foster parents they did not have that right. Through s. 68, however, they could have tested the fairness of the Society’s process and the decision to close their home and remove the children. They chose not to do so. The judicial review approach also gives these respondents no relief. This is not a case of unfair treatment as in Beson v. Beson. The respondents made no such allegations. In fact, in her affidavit, the respondent Mrs. G. stated that she and her husband “can appreciate why the Society terminated us as foster parents”.

[33] Like the mother in the Liverpool case, these respondents make an argument for a general reviewing power in the courts over the discretionary decisions of the Society. There is an echo of that argument in the opinion of the motions judge that if these respondents could not apply under s. 21, the Society would be elevated to a position “superior to that of a parent”. The motions judge also thought it inconceivable that the Legislature could have intended to remove from the court the authority to determine “so basic and fundamental an issue” as the best interests of the child. I can do no better than adopt the answer of Lord Wilberforce in Liverpool at page 388:

It was suggested that, as the local authority is put effectively in the position of the natural parent (see s. 24(2) of the 1969 Act), the High Court must have the same power in the interest of the infant, to review and control its actions, as it undoubtedly has over those of the natural parent. But I can see no parallel between the responsibilities of a natural parent and those entrusted by Parliament by statute to a public authority possessed of the necessary administrative apparatus to form and to carry out, if necessary against the wishes of the natural parent, its discretionary decisions. In my opinion Parliament has marked out an area in which, subject to the enacted limitations and safeguards, decisions for the child’s welfare are removed from the parents and from supervision by the courts. [Emphasis added.]

[34] Lord Wilberforce went on to qualify this statement in the passage earlier referred to and quoted with approval by Wilson J. leaving no doubt that in a proper case the superior court will exercise its parens patriae jurisdiction by way of judicial review. But, this does not allow the court to substitute its opinion for that of the Society and as I have pointed out above, there are no grounds for judicial review in this case.

[37] The Court of Appeal concluded that the superior court will exercise its parens patriae jurisdiction by way of judicial review in the proper case.

[38] There are proper cases for judicial review brought by foster parents.

[39] Is this one of those cases? I find it is.

[40] Both the Squamish First Nation and the foster parents complained that they had not received notice of the protection application, prior to finding and disposition. I have not gone behind the order. I need to deal with matters as I find them at the time that I must decide a case. The child was made a Crown ward over a year ago and there has been no appeal. The child has been in the foster parents care nearly two years. One of the society’s plans was to have the child remain in the care of the foster parents. When the Squamish First Nation came forward with a plan, the society determined and may have felt obliged, in the circumstances, to have the child re-united with other siblings, members of the child’s extended family or member of the child’s band or native community.

[41] The review under section 68 or section 144 of the Act has not been completed. The fact that the time necessary to complete these reviews will result in the foster parents’ obtaining new rights under subsection 61(5), subsection 61(7) and subsection 61(8) cannot justify the society’s preventing the foster parents from having a full, fair and complete right of review. If the society is now able to decide the child’s removal from Ontario on the facts of this case without review, a review would be potentially meaningless and may be contrary to the child’s best interest. To remove the child prior to completion of the review and possible subsequent judicial review does not afford the foster parents a meaningful right of review. To remove the child prior to the review’s completion runs contrary to the child’s best interest as it upsets the status quo, continuity of care and possibly long-term stability of care. Although ultimately, it may be in the child’s best interests, and not reversed on any judicial review, that the child be placed with members of the Squamish First Nation in British Columbia, it cannot be in the child’s best interest to have the child go to the Squamish First Nation now and have the review proceed with the possibility that the review might conclude that she should not have been removed from Ontario and that it is in the child’s best interest that she stay in Ontario with the foster parents. A move may result in Ontario’s loss of jurisdiction, once the child is in British Columbia.

[42] Therefore, an interim order is necessary and I order that the child is not to be removed from the care of the foster parents, pending the completion of all of their rights to review and, ultimately, a judicial review being completed.

[43] The end result may be that the child will be permitted to go, but on an interim basis, it is unfair, contrary to any notion of best interests, that a status quo of nearly two years be disrupted, pending review as contemplated by the society and as contemplated by the courts in previous cases. The decision to remove the child prior to completion of review is an unfair, incorrect and unreasonable decision, subject to judicial review.

[44] The Child and Family Services Act has various time lines and notice requirements. The two-year time line, I have considered, is different from time lines under clause 70(1)(a) for a child of this age.

[45] Subsection 39(3) also has a different time period (emphasis added):

(3) Right to participate.— Any person, including a foster parent, who has cared for the child continuously during the six months immediately before the hearing,

(a) is entitled to the same notice of the proceeding as a party;

(b) may be present at the hearing;

(c) may be represented by a solicitor; and(d)may make submissions to the court,

but shall take no further part in the hearing without leave of the court.

[46] It is important for children to have decisions made about permanency planning in a timely manner. At times, in spite of best intentions, the time necessary to consult, communicate or co-ordinate all available resources makes it difficult or unreasonable to expedite decision-making. Time sometimes dictates the outcome.

[47] In coming to this conclusion, I have considered the book of authorities, filed by both parties:

1. Judicial Review Procedures Act, R.S.O. 1990, c. J-1 [as amended], section 5.

2. Courts of Justice Act, R.S.O. 1990, c. C-43 [as amended], section 96.

3. Child and Family Services Act, R.S.O. 1990, c. C-11 (as amended), section 97.

4. Catholic Children’s Aid Society of Metro Toronto v. M. (Cidalia) (1993), 1993 8484 (ON CA), 13 O.R. (3d) 227, 101 D.L.R. (4th) 744, 47 R.F.L. (3d) 109, [1993] O.J. No. 970, 1993 CarswellOnt 332 (Ont. C.A.).

5. Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 243 N.R. 22, 174 D.L.R. (4th) 193, 14 Admin. L.R. (3d) 173, 1 Imm. L.R. (3d) 1, [1999] S.C.J. No. 39.

6. Re Triskow and Children’s Protection Act (1918), 1918 537 (AB SCAD), 14 Alta. L.R. 46, [1918] 3 W.W.R. 512, 43 D.L.R. 452 (Alta. App. Div.).

7. E. v. Eve, 1986 36 (SCC), [1986] 2 S.C.R. 388, 71 N.R. 1, 61 Nfld. & P.E.I.R. 273, 185 A.P.R. 273, 31 D.L.R. (4th) 1, 13 C.P.C. (2d) 6, [1986] S.C.J. No. 60.

8. Re McQuaid (1980), 1980 3799 (PE PC), 28 Nfld. & P.E.I.R. 468, 79 A.P.R. 468, 20 R.F.L. (2d) 292, [1980] P.E.I.J. No. 7 (P.E.I. Fam. Div.).

9. Beson and Beson v. Director of Child Welfare for Newfoundland, 1982 32 (SCC), [1982] 2 S.C.R. 716, 44 N.R. 602, 39 Nfld. & P.E.I.R. 246, 111 A.P.R. 246, 142 D.L.R. (3d) 20, 30 R.F.L. (2d) 438.

10. Nicholson v. Haldimand-Norfolk Reg. Police Commissioners, 1978 24 (SCC), [1979] 1 S.C.R. 311, 23 N.R. 410, 88 D.L.R. (3d) 671.

11. Re Webb and Ontario Housing Corporation (1978), 1978 1490 (ON CA), 22 O.R. (2d) 257, 93 D.L.R. (3d) 187 (Ont. C.A.).

12. White v. White and Family and Children’s Services of London and Middlesex (1982), 1982 4764 (ON CJ), 28 R.F.L. (2d) 302, [1982] O.J. No. 641 (Ont. Prov. Ct., Fam. Div.).

13. Racine and Racine v. Woods, 1983 27 (SCC), [1983] 2 S.C.R. 173, 48 N.R. 362, 24 Man. R. (2d) 314, [1984] 1 W.W.R. 1, 1 D.L.R. (4th) 193, 36 R.F.L. (2d) 1, [1984] 1 C.N.L.R. 161, 1983 CarswellMan 147.

14. Children’s Aid Society of London and Middlesex v. M.(J.), P.(K.), V.(M.) and Garden River First Nation (2000), 2000 22887 (ON SC), 94 A.C.W.S. (3d) 1138, [2000] O.J. No. 331, 2000 CarswellOnt 310 (Ont. Fam. Ct.).

15. Yule Inc. v. Atlantic Pizza Delight Franchise (1968) Ltd. et al. (1977), 1977 1198 (ON SC), 17 O.R. (2d) 505, 80 D.L.R. (3d) 725, 35 C.P.R. (2d) 273 (Ont. Div. Ct.).

16. Children’s Aid Society of Metropolitan Toronto v. Dizio (1990), 1990 6917 (ON SC), 75 O.R. (2d) 92, 27 R.F.L. (3d) 311, [1990] O.J. No. 1335 (Ont. Div. Ct.).

17. G.(C.) and G.(M.) v. Catholic Children’s Aid Society of Hamilton-Wentworth (1998), 1998 3391 (ON CA), 40 O.R. (3d) 334, 110 O.A.C. 338, 161 D.L.R. (4th) 466, 39 R.F.L. (4th) 389, [1998] O.J. No. 2546, 1998 CarswellOnt 2578 (Ont. C.A.).

18. L.(R.) and L.(T.) v. Children’s Aid Society of Niagara Region, [2002] O.J. No. 4481 (Ont. S.C.).

19. Children’s Aid Society of Metropolitan Toronto v. S. (Donna) and S. (Fred) (1991), 1991 4537 (ON CJ), 28 A.C.W.S. (3d) 205, 11 L.W.C.D. 424, [1991] O.J. No. 1384 (Ont. Prov. Div.).

20. Children’s Aid Society of Peel Region v. O. (Wendy), B. (Rashpal Singh), B. (Harbugan) and B. (Surinder). (2002), 2002 46211 (ON CJ), 112 A.C.W.S. (3d) 705, [2002] O.J. No. 1099, 2002 CarswellOnt 885 (Ont. C.J.), at paragraphs [31] and [37].

21. Children’s Aid Society of Dufferin County v. R. (James) (2002), 2002 45514 (ON CJ), 118 A.C.W.S. (3d) 78, [2002] O.J. No. 4319, 2002 CarswellOnt 3821 (Ont. C.J.), at paragraph [40].

22. Catholic Children’s Aid Society of Metropolitan Toronto v. M. (Cidalia), 1994 83 (SCC), [1994] 2 S.C.R. 165, 165 N.R. 161, 71 O.A.C. 81, 113 D.L.R. (4th) 321, 2 R.F.L. (4th) 313, [1994] S.C.J. No. 37, 1994 CarswellOnt 376, at paragraph [24].

23. Westell v. Jarrell and Cyprick (1981), 1981 1644 (ON CA), 34 O.R. (2d) 44, 130 D.L.R. (3d) 418, 24 R.F.L. (2d) 342, 1981 CarswellOnt 297 (Ont. C.A.), sub nom. C.G.W. v. M.J. and A.C.

24. Karavos v. Toronto (City) and Gillies, 1947 326 (ON CA), [1948] O.W.N. 17, [1948] 3 D.L.R. 294, [1947] O.J. No. 331 (Ont. C.A.).

25. Thunder Bay Seaway Non-Profit Apartments v. Thunder Bay (City) (1991), 1991 7100 (ON SC), 5 O.R. (3d) 667, 53 O.A.C. 176, 85 D.L.R. (4th) 229, 7 M.P.L.R. (2d) 276, [1991] O.J. No. 1963 (Ont. Div. Ct.).