K. J. v. Catholic Children's Aid Society of Toronto, 2003 CanLII 2142 (ON SCDC)

Divisional Court File No. 447/03

Date: December 4, 2003

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BENOTTO S.J., DUNNET J. and MEEHAN J.

B E T W E E N:

K.J. and L.J.

Applicants

• and -

THE CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO

Respondent

Appearances:

Ian R. Mang for the Applicant

J. Alexander Duncan for the Respondent

Heard: October 28, December 1, 2003

BY THE COURT:

Introduction

1This is an application for judicial review of the decision of the Director appointed pursuant to section 144 of the Child and Family Services Act, R.S.O. 1990, c. C.11, confirming the decision of the Executive Director of the respondent to deny approval of the applicants as adoptive parents for the child.

2The application came on for hearing before this Court on October 28, 2003. At the conclusion of argument by counsel for the applicants, the Court adjourned the hearing for the purpose of permitting the parties to tender further evidence on the issue of the child’s current status. We had no information about the child’s situation after August 2002.

3The respondent (“the Society”) produced the psychological assessment of Dr. Connie Kushnir dated September 10, 2003. The applicants submit that the case notes that form the basis of the doctor’s information include observations of supervised access visits, which were not disclosed to the Director. On consent, the application was amended to include the following paragraph:

4“The Respondent Society either intentionally or unintentionally misled the applicants and the Director by withholding information relevant to the best interests of the child, thereby rendering a fair hearing impossible.”

Background

5The relevant facts are as follows. The child was apprehended by the Society at his birth on January 28, 2001, and placed with the applicants on January 31, 2001. He became legally available for adoption in June 2001, and the applicants applied for approval as adoptive parents.

6The Society began the process of evaluating the applicants with a home study conducted by Anabela Cardoso, a Society social worker. The study revealed discrepancies and omissions in the information provided by the applicants to the Society, including the fact that the applicant Ms J. suffered from mental and emotional problems resulting from sexual abuse experienced as a child and that the applicant Mr. J’s father was on the Child Abuse Registry.

7The applicants were terminated as foster parents and the child transferred out of their home on August 9, 2002. Access visits began in August 2002. The child had three one-hour visits weekly and frequent telephone contact. Access ended on July 21, 2003 when this application was commenced.

8The Society provided reasons in writing why the applicants were rejected as adoptive parents and the applicants appealed the decision to the Director. They met with the Executive Director of the Society and underwent an assessment by Dr. Graham Berman, psychiatrist. Dr. Berman found them to be suitable parents and spoke of the attachment that the child had formed with them. The Society chose not to follow the recommendation and rejected the application for adoption. Pursuant to the provisions of the Act, Theodore Giesbrecht was appointed a Director to review the Society’s decision. He confirmed the rejection of the applicants as adoptive parents.

9The Director, with the consent of counsel, conducted an informal hearing. It was agreed by the parties that the child had been well cared for with the applicants and that he had a strong continuing attachment to them.

The Director's Decision

10The applicants submit that the Director erred in substituting his own opinion for that of Dr. Berman and failed to give proper weight to Dr. Berman’s recommendation that the child be placed with the applicants.

11However, the Director believed that there were several factors which caused him concern. He stated (at page 35):

I believe that Dr. Berman placed too much weight on the attachment issue when balanced against the possibility of recurrence of [Ms J’s] depression and that Dr. Berman did not address the countervailing arguments to risk associated with disrupted attachment, namely, alleged marital discord, financial issues, misrepresentation of critical information for the home study process and the exhibition of the lack of honesty of the Applicants.

12The Director found also that:

• there was a risk in placing the child in a family where both grandfathers have had allegations of sexual abuse made against them and where both grandfathers are an integral part of the family constellation.

• the applicants were not truthful when they stated that they had never previously applied to a social service agency for a child, when they had in fact done so and had been denied.

• they failed to provide information concerning Ms J.’s history of abuse by her parents and the impact that experience had on her emotional well-being.

• they made misrepresentations to the respondent and to three doctors whose reports formed part of the adoption process as well as to the agency that had employed them as foster parents.

13The Director conducted a detailed and comprehensive analysis of the evidence and the submissions. With respect to attachment, he noted (at page 34):

Six months have passed from the date of [Dr. Berman’s] report and [the child] has been out of the [applicants’] home from August 9, 2002 until now. I suggest that the attachment that once was, is not as strong today [June 2003] as it was on August 9, 2002, nor as of December 3, 2002, the date of Dr. Berman’s report. [The child] will have transition issues if he returns to the [applicants’] household or a new household.

Analysis

14The issue before us is whether the decision of the Director was reasonable. The Director was not obliged to follow Dr. Berman’s recommendation. He had information which tended towards a different conclusion. He weighed that evidence and came to a different “difficult” decision. His reasons reveal a thorough analysis of the facts, and the statutory provisions.

15He concluded (at page 41):

I, too, am of the view that the Applicants do not possess the qualities that suitable prospective adoptive parents present when seeking approval from a Society for a placement of a child for adoption with them and therefore the J.’s create a risk for the future well being of [the child] that outweighs the risks associated with transferring the attachment that now exists with the J.’s to a new family.

16We are unable to find that there was a denial of natural justice or that the process before the Director was flawed. Brenda McNeely provided extensive evidence on the child’s attachment issues and the Director had ample information that contradicted the recommendations of Dr. Berman. His analysis took into account the best interests of the child in all the circumstances. We conclude that his decision was not unreasonable.

17We have come to this conclusion with reluctance for we share the concerns of the Director. We echo the comments made by the Director that there should be a more thorough investigation of prospective foster parents, especially for newborns.

Conclusion

18The application is dismissed. This is not a case for costs.

Benotto S.J.

Dunnet J.

Meehan J.