A.I. v. Ontario (Minister of Children's Services), 2005 CanLII 20791 (ON SCDC)

minicounsel

Footnotes

Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner) (2003), 2003 72347 (ON SCDC), 66 O.R. (3d) 692, [2003] O.J. No. 3522 (Div. Ct.).
The Child and Family Services Act, s. 140(1)(a).
Affidavit of the Applicants, sworn December 10, 2004, Exhibit 8, Consolidated Record of the Applicants, pp. 132-33.
Director's Record, vol. 1, p. 176, e-mail from M. McCallum to L. Barker dated October 14, 2003.
Director's Record, vol. 1, p. 79, Minutes of Adoption Placement Meeting, November 19, 2003.
Director's Record, vol. 1, Case update January 9, 2004, p. 82.
Affidavit of the Applicants sworn on December 10, 2004, Exhibit 8, pp. 7 and 11, Consolidated Record of the Applicants, Tab F.
Record of Proceedings, vol. 1, pp. 184-91.
Affidavit of the D.s sworn February 7, 2005, paras. 9 and 10.
Record of Proceedings, vol. 1, p. 75; "Case Summary of Adoption Plan".
Affidavit of the Applicants sworn December 10, 2004, Exhibit 8, pp. 12, 13, Consolidated Record of the Applicants.
Ibid, p. 13.
Record of Proceedings, vol. 1, p. 76; Case Summary.
Ibid, p. 77.
Applicants' Consolidated Record, Tab 8, pp. 141-42.
Joint affidavit of the D.s, February 7, 2005, Respondents' Consolidated Record, tab 5, paras. 39 to 41.
Joint affidavit of the D.s, February 7, 2005, Respondents' Consolidated Record, tab 5, para. 46.
Director's Record, vol. 2, Tab 10, Report of the Director, pp. 1-26 (quote from p. 20).
Ibid, pp. 23-25.
L. (R.) v. Children's Aid Society of Niagara Region, 2002 41858 (ON CA), [2002] O.J. No. 4793, 2002 CarswellOnt 4262 (C.A.), para. 46.
This concession was clearly correct. See: Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), 1994 83 (SCC), [1994] 2 S.C.R. 165, [1994] S.C.J. No. 37, 1994 CarswellOnt 376, at para. 20.
Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39.
"Generally applicants must establish that the delay has caused actual prejudice to their ability to make full answer and defence to establish a breach of the duty of fairness ...": Brown and Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback, 1998), p. 9-84.
New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47.
Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, [2004] S.C.J. No. 6, at para. 3.
Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982, [2004] S.C.J. No. 46.
In fairness to Director Giesbrecht, his qualifications as a lawyer, adoption licencee and experienced reviewer are much better than alleged: see J. (K.) v. Catholic Children's Aid Society of Toronto, 2003 2142 (ON SCDC), [2003] O.J. No. 5058, 49 R.F.L. (5th) 342 (Div. Ct.).
See the discussion of this point in Jones and de Villars: Principles of Administrative Law, 4th ed. (Toronto: Thomson-Carswell, 2004), pp. 502-8.
Per McLachlin C.J.C. in Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, [2003] S.C.J. No. 18, at para. 31.
"Developments in Administrative Law: The 2002-2003 Term" in (2003) 22 S.C.L.R. (2d) 21, at pp. 35-38.
Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982, at para. 32.
They are listed in Appendix A. Some of them are of a nature which may well be assigned to permanent employees, whether of CAS or of the Ministry, but we have no detailed evidence of the administrative arrangements beyond those that applied to Director Giesbrecht.
Supra, note [27].
See: Gordon v. Gordon, 1980 3616 (ON CA), [1980] O.J. No. 1469, 23 R.F.L. (2d) 266 (C.A.), at para. 11: "A custody case where the best interests of the child is the only issue, is not the same as ordinary litigation and requires, in our view, that the person conducting the hearing take a more active role than he would ordinarily take in the conduct of a trial". The appeal was from a decision of a Family Law Commissioner awarding custody of the child, a situation analogous to the present.
Beson v. Newfoundland (Director of Child Welfare), 1982 32 (SCC), [1982] 2 S.C.R. 716, 142 D.L.R. (3d) 20.
Children's Aid Society of Metropolitan Toronto v. Dizio (1990), 1990 6917 (ON SC), 75 O.R. (2d) 92, [1990] O.J. No. 1335 (Div. Ct.)
Re Boone and Catholic CAS of Toronto, unreported, December 20, 2004, Doc. 664/04 (Ont. Div. Ct.)
Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, at para. 55.
Ibid. at paras. 48-50.

A.I. et al. v. Giesbrecht (an appointed Director pursuant to section 144 of the Child and Family Services Act) et al. [Indexed as: I. (A.) v. Ontario (Director, Child and Family Services Act)

75 O.R. (3d) 663

[2005] O.J. No. 2358

Court File No. 645/04

Ontario Superior Court of Justice

Divisional Court

O'Driscoll, Lane and Molloy JJ.

June 8, 2005

Administrative law -- Judicial review -- Standard of review -- Standard of review of decision of Director appointed under s. 144 of Child and Family Services Act to conduct review of decision with respect to placement of child for adoption being that of reasonableness -- Child and Family Services Act, R.S.O. 1990, c.C.11, s. 144.

Charter of Rights and Freedoms -- Fundamental justice -- Foster parents of ward of Children's Aid Society having no s. 7 Charter rights in respect of their relationship to child -- Removal of child from foster parents' care under police escort in order to place him for adoption not [page664] violating Charter rights of foster parents -- Section 144 of Child and Family Services Act not impermissibly vague -- Canadian Charter of Rights and Freedoms, s. 7 -- Child and Family Services Act, R.S.O. 1990, c. C.11, s. 144.

Family law -- Children -- Adoption -- Lengthy delay in review by Director of decision refusing to place child with applicants for adoption occasioned by pursuit of information relevant to best interests of child -- Delay not causing Director to lose jurisdiction and not causing unfairness to applicants -- Standard of review of Director's decision that of reasonableness -- Director's decision not unreasonable.

The applicants acted as foster parents of the child, who was in the legal custody of the Halton Children's Aid Society ("HCAS"), from his birth at the end of October 2002 until December 23, 2003, when he was placed for adoption by the Ds. Several times, from May through November 2003, the applicants were offered the opportunity to present an adoptive plan for the child. They repeatedly refused to be considered as prospective adoptive parents. The Ds were selected by the HCAS and the applicants as an appropriate adoptive family in November 2003. The day after that decision was made, the applicants indicated that they had decided to adopt the child. They changed their minds again the next day. A plan was worked out whereby the child had increasing contact with the Ds, to culminate with his permanent placement in the D home on December 23, 2003. On December 22, the female applicant notified the HCAS that she would not permit the final pre- placement visit, scheduled for that day, to take place and that "the ado ption process needed to stop". The child was taken from the applicants' home with the assistance of the police on December 23. The applicants complained to the HCAS internally and, at the end of January 2004, they were referred to the external review process. In February 2004, the applicants requested a Director's review of the HCAS decision refusing to place the child with them. A hearing was set for June 28, 2004. The applicants called Dr. C to give evidence. In responding to allegations about the Ds placed before him by the female applicant in examining him as a witness, Dr. C made comments suggesting that the child had suffered trauma because of being moved. The Director proposed that an independent assessor be engaged to determine the degree of attachment between the Ds and the child and also the current degree of attachment to the applicants. Dr. C was appointed to perform that task. He interviewed the Ds in September and did not complete his report until mid-October. The HCAS advised the Director on Ju ly 6, 2004 that it wished to call evidence to rebut the comments made by Dr. C about the Ds. This intention was confirmed in a letter of October 29, which was forwarded to the applicants by the Director. This rebuttal evidence ultimately included a report from Dr. S, an expert in issues of the attachment of children to parental figures, who was engaged by the HCAS to perform that assessment on October 6, while Dr. C's report was being awaited. Dr. C concluded that the child would be at emotional risk if left in the D home and would lose his "only psychological parents", the applicants. Dr. S found that the child was strongly attached to both adoptive parents. The Director offered the applicants an adjournment to November 29 to enable them to consider the additional evidence, but they refused, insisting on proceeding with the hearing at once. The hearing proceeded, the Director admitted the additional evidence and ultimately found it persuasive. The hearing concluded on November 19 and the report of the Direct or, confirming the decision to place the child with the Ds for adoption, was delivered on December 10, 2004. The applicants brought an application for judicial review of that decision.

Held, the application should be dismissed. [page665]

Per Lane J. (O'Driscoll J. concurring): The review process was not fatally flawed by excessive delay. The total elapsed time from complaint to decision was 306 days, some ten months. An adjudicator will not lose jurisdiction to proceed with a dispositional hearing solely on the basis of delay, even when that delay infringes upon statutorily prescribed time limits, so long as it is guided in that regard by the best interests of the child. The lengthy delay in this case was unfortunate, but it was occasioned in the pursuit of information relevant to the best interests of the child. The delay did not create unfairness.

The Director did not create procedural unfairness when he admitted Dr. S's report into evidence. Once Dr. C was engaged, the presentation of such a report was entirely predictable and did not expand the scope of the inquiry. This case was about the best interests of the child. Fresh evidence on the child ought to be admitted and the parties given time to prepare to meet it, rather than exclude it altogether. The Director made a reasonable decision: he accepted the report and other documents because they were relevant to the best interests of the child, and gave the applicants an offer of time to consider. The applicants knew the case they had to meet as the hearing progressed and were offered the time to prepare to meet the new developments as they occurred. There can be no legitimate expectation that the planned course of a hearing will not be changed to accommodate the requirements of a fair and adequate hearing that deals with the issues raised by the evidence as it is heard.

The applicants' rights under s. 7 of the Canadian Charter of Rights and Freedoms were not violated when the child was removed from their care under police escort. Security of the person includes security of psychological integrity, but to make out a breach of s. 7 the state action must have a profound effect on a person's psychological integrity beyond the level of ordinary stress or anxiety. The applicant's relationship with the child was not one of fundamental importance to society, and the state's act of removing its ward from the applicants for the purpose of placing him for adoption did not constitute state interference with the parent-child relationship. The applicants had no s. 7 Charter rights in respect of their relationship with the child as foster parents. Nor could they assert such a right on behalf of the child, with whom they had no legal relationship except a contractual one to care for him as agent of the HCAS. Section 144 of the Child and Family Services Act is not impermissibly vague, and does not violate the s. 7 Charter rights of the child by not expressly requiring a focus to be on the best interests of the child.

The standard of review of the Director's report was that of reasonableness. The decision was discretionary, fact-driven and lay at the heart of the Director's expertise, but it was unprotected by any privative clause and it involved the best interests of the child, an area of expertise shared, at least in part, by the court.

The Director was of the view that, given the suitability of both families, the determinative factors in assessing the decision of the HCAS were those related to the best interests of the child: the prolonged ambivalence of the applicants, the need for a timely placement, and the readiness of the child to accept the transfer. The Director reached reasonable conclusions on the issues before him. He canvassed the factual evidence and made findings which were open to him on the evidence. He recognized the differences between the experts and resolved them by resort to first-hand evidence of those who had observed the child in the D family setting. He considered expressly the need for continuity in the care of the child. His reasons stood up to scrutiny. His decision was reasonable.

Per Molloy J. (dissenting): From the perspective of the child, the review process was unfair. The best interests of the child required an independent, balanced [page666] review of the placement decision. The conduct of the HCAS, along with the unacceptable delay in completing the hearing, resulted in a review that was unfairly tilted in favour of leaving the child with the Ds. First, the HCAS failed to preserve the status quo pending the hearing. Second, the HCAS contributed to the excessive delay in getting this matter to a hearing. Third, the HCAS controlled how much contact there would be between the applicants and the child pending the determination of the review. The access which was permitted was not conducive to maintaining an attachment between the child and the applicants. Fourth, in the face of an independent assessment ordered by the Director evaluating the relationships between the child and both sets of prospective adoptive parents, the HCAS delayed for three months before retaining its own expert. It then obtained information only with respect to the attachment between the Ds and the child, being apparently uninterested in how the child interacted with the applicants. Finally, the HCAS filed its material at the eleventh hour, literally the day before the hearing was to commence. It then relied on this unrebutted material to argue that the child had formed a deep attachment with the Ds over the course of 11 months and that to disrupt him now would be damaging to him. This was a result fuelled by the HCAS's own conduct.

Notwithstanding the unfairness of the process up to the time of the Director's decision, it did not necessarily follow that the Director's decision was itself unreasonable or not in the best interests of the child. However, the reasoning of the Director was adversely affected by the defects in the process up until then, such that it was not clear that the same result would have been reached if the interests of the child had been properly taken into account.

APPLICATION for judicial review of a decision of a Director refusing to place a child with the applicants for adoption.

Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193, 243 N.R. 22, apld Boone and Catholic CAS of Toronto (Re), unreported, December 20, 2004, Toronto (Div. Ct.) Doc. 664/04, distd Other cases referred to Beson v. Newfoundland (Director of Child Welfare), 1982 32 (SCC), [1982] 2 S.C.R. 716, 142 D.L.R. (3d) 20, 44 N.R. 602; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, [2004] S.C.J. No. 6, 234 D.L.R. (4th) 257, 315 N.R. 201, 115 C.R.R. (2d) 88, 180 C.C.C. (3d) 353, 46 R.F.L. (5th) 1, 2004 SCC 4, 16 C.R. (6th) 203; Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), 1994 83 (SCC), [1994] 2 S.C.R. 165, [1994] S.C.J. No. 37, 18 O.R. (3d) 160n, 113 D.L.R. (4th) 321, 165 N.R. 161, 2 R.F.L. (4th) 313; Children's Aid Society of Metropolitan Toronto v. Dizio (1990), 1990 6917 (ON SC), 75 O.R. (2d) 92, [1990] O.J. No. 1335, 27 R.F.L. (3d) 311 (Div. Ct.); Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, [2003] S.C.J. No. 18, 223 D.L.R. (4th) 599, 302 N.R. 34, [2003] 5 W.W.R. 1, 2003 SCC 19, 11 B.C.L.R. (4th) 1; Gordon v. Gordon, 1980 3616 (ON CA), [1980] O.J. No. 1469, 23 R.F.L. (2d) 266 (C.A.); J. (K.). Catholic Children's Aid Society of Toronto, 2003 2142 (ON SCDC), [2003] O.J. No. 5058, 49 R.F.L. (5th) 342 (Div. Ct.); L. (R.) v. Children's Aid Society of Niagara Region, 2002 41858 (ON CA), [2002] O.J. No. 4793, 167 O.A.C. 105, 34 R.F.L. (5th) 44 (C.A.); Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, 257 N.B.R. (2d) 207, 223 D.L.R. (4th) 577, 302 N.R. 1, 674 A.P.R. 207, 2003 SCC 20, 31 C.P.C. (5th) 1; New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47, 216 N.B.R. (2d) 25, 177 D.L.R. (4th) 124, 244 N.R. 276, 552 A.P.R. 25, 66 C.R.R. (2d) 267, 50 R.F.L. (4th) 63, 26 C.R. (5th) 203; Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner), 2005 11786 (ON CA), [2005] O.J. No. 1426, 196 O.A.C. 350, 253 D.L.R. (4th) 489 (C.A.), affg (2003), 2003 72347 (ON SCDC), 66 O.R. (3d) 692, [2003] O.J. No. 3522, 231 D.L.R. (4th) 727, 45 R.F.L. (5th) 285 (Div. Ct.); [page667] Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46, 160 D.L.R. (4th) 193, 226 N.R. 201 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 11(b) Child and Family Services, R.S.O. 1990, c. C.11, ss. 1 [as am.], 5, 10, 17, 29 [as am.], 30, 31, 34(5), 37(1), 40, 51 [as am.], 61(4), (6), (8), (9) [as am.], 64 [as am.], 66(1), 68, 69(1)(d) [as am.], 71(2), 77, 78, 80, 86(3), (5), 114, 126-128, 137(2), 138, 140-142, 144, 145, 149 [as am.], 193, 195-201 [as am.], 214 [as am.] Children's Law Reform Act, R.S.O. 1990, c. C.12 Rules and regulations referred to Family Law Rules, O. Reg. 114/99, rule 33(1) [as am.] Authorities referred to Brown, D., and J.M. Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback, 1998) Jones, D.P., and A. de Villars, Principles of Administrative Law, 4th ed. (Toronto: Thomson-Carswell, 2004) Sossin, L."Developments in Administrative Law: The 2002-2003 Term" (2003) 22 S.C.L.R. (2d) 21

Jeffery Wilson, for applicants. Marvin Kurz, for Halton CAS, respondent. Charlotte Murray, for G.D. and B.D., adoptive parents, respondents. Michael Fleishman, for Attorney-General of Ontario, for Her Majesty, respondent. Catherine Bellinger, for Office of the Children's Lawyer, appointed to represent Child, respondent.

Reasons of Lane J.

1LANE J. (O'DRISCOLL J. concurring):-- This is an application for judicial review of the decision of the respondent Theodore Giesbrecht dated December 9, 2004, made in his capacity as a Director appointed by the respondent Minister under s. 144 of the Child and Family Services Act, R.S.O. 1990, c. C.11 ("CFSA"), to conduct a review of the decision of the Halton Children's Aid Society ("HCAS") refusing to place a child, D.H. (the "Child" or "D.H."), with the applicants for adoption.

2The applicants acted as foster parents to provide care to the Child, who was in the legal custody of the HCAS, from his birth at the end of October 2002 until December 23, 2003 when he was placed for adoption with the respondents, the D.s, as prospective adoptive parents. The placement was registered with the [page668] Ministry on December 24, 2003, and the D.s have cared for the Child continuously since that date with the applicants exercising visiting rights.

3The applicants initially sought an order in the nature of mandamus to require the Director to complete his report, but after the report was delivered, amended their application to seek an order quashing the report and referring the determination of the best interests of the Child either to a status review pursuant to Part III of the CFSA in the Ontario Court, or to a trial before a judge of the Superior Court with themselves as applicants and the HCAS and the D.s as respondents. In oral submissions, the applicants' counsel focused on the trial in the Superior Court as the appropriate relief.

4The Office of the Children's Lawyer ("OCL") was appointed by order of Pitt J. to represent the Child on this application and conducted an investigation including interviews with both the applicants and the D.s including observing the interaction between the Child and each couple. The OCL did not file any material based on its investigation. At the hearing before us, counsel for the OCL stated that she could not file her evidence because the time agreed for filing material had passed. She made no application to introduce the evidence, but stated that her support of the applicants was based only on the material before the court. This position is problematic. As this court has previously held ¹, the OCL acts as a lawyer and not as a government agency in its relationship with its clients. Further, it is independent of the interests of the Child's adoptive parents and of the applicants, acting only for the Child. As a lawyer for a party, the OCL can choose to rely or not to rely on any evidence that it collec ts. However, no other lawyer would be permitted to state that he or she had collected evidence on which the party did not choose to rely without suffering the possibility that the court would draw the inference that the evidence did not support the position being taken. I do not draw the inference, but, considering that the heart of this matter is the best interest of the Child, it is hard to see how depriving this court of the most recent evidence advances that interest.

Background

5The applicants have been foster parents to between 70 and 120 children since 1991, when they first contracted with the [page669] HCAS to provide such care for wards of the Crown in the care of the HCAS. The Child, D.H., was placed in the care of the HCAS by his biological parents immediately following his birth pursuant to a Temporary Care Agreement under Part II of the CFSA. The HCAS immediately placed the Child in the home of the applicants in accordance with the terms of their Foster Care Service Agreement on November 4, 2002.

6The child's biological parents continued to exercise access to him until May 2003. The HCAS commenced a Protection Application under Part III of the CFSA in April 2003 and an order for Crown wardship without access was made on September 18, 2003. From this date the HCAS became statutorily obligated to take all reasonable steps to secure the adoption of the child ².

7The HCAS began to investigate permanency planning in April 2003, commensurate with the biological parents' diminishing involvement with the Child and the decision to commence a protection application. Adoption conferences were held on May 15, September 22 and November 19, 2003. The applicant, [A.I.], was an active participant at each of these conferences.

8Throughout the period of May through November 2003, the applicants were several times offered the opportunity to present an adoptive plan for the Child. They repeatedly refused to be considered as prospective adoptive parents. As described by Ms. [A.I.]:

It has been said that we self-eliminated on two occasions. In reality, I think we eliminated ourselves many more times. We repeatedly questioned whether we were the best choice for [D.H.]. ³

9A prospective adoptive family was identified by the HCAS and the applicants at the September 22, 2003 conference. That family subsequently withdrew their adoptive plan on October 10, 2003. There is evidence that the applicants were concerned that the prospective adoptive family took ten days in total to come to a decision about the Child, clearly indicating their ambivalence ⁴. Ms. [A.I.] was anxious to have another conference at an early date to select another adoptive family. [page670]

The Selection of the D.s as Adoptive Parents and the Reactions of the [I.s]

10At the November 19, 2003 adoption conference, the D. family was selected by the HCAS and the applicants as an appropriate adoptive family. The minutes of the meeting record:

[A.I.] and [C.I.] both felt that this couple was the right choice for D.H. The D.s have two other biological children in the house and [A.I.] felt this would be good for D.H. as he is used to a busy household and it would be a smoother transition. [A.I.] loved the profile on Mrs. D. and felt that she appeared to be very like her but was younger and more able to cope with any issues which could arise for D.H. in the future. The [I.s] have thought long and hard about adopting D.H. themselves but feel it is in D.H.'s best interest to go to the D.s.

The D.s will be first choice with [A.I.] and [C.I.] as second choice. ⁵

11On November 20, Ms. [A.I.] telephoned Ms. Nancy Godwin, D.H.'s placement worker, and told her that the applicants had decided that they were going to adopt D.H. The HCAS adoption worker, Ms. Shirley Hynd, was meeting with the D.s that same day to review the Child's file with them as prospective adoptive parents. The D.s recall that during that meeting, the worker received a telephone call and then advised the D.s that the applicants had changed their minds and decided to keep the child.

12The next day, November 21, 2003, Ms. [A.I.] advised the HCAS that the applicants had once again changed their minds and did not wish to be considered as prospective adoptive parents. Ms. Godwin minuted the conversation ⁶:

On November 21st, this worker telephoned [A.I.] in response to the above message [of November 20th] and learned from her then that she had [sic] [C.I.] had changed their minds. According to [A.I.], on Nov. 20th she went to her family doctor to alert him to the family's plan to adopt. According to [A.I.], her doctor advised her against adoption due to her health history. [A.I.] said that what her doctor said as reasons not to adopt were all the reasons she had been thinking all along and that his statements reinforced her feelings.

13Ms. Godwin also reported that during this same discussion, Ms. [A.I.] expressed concern that her indecision would result in the child "losing the best adoptive family for him, namely, the D.s". She reassured Ms. [A.I.] and suggested the applicants take some time to consider their decision once again. [page671]

14Ms. [A.I.] stated in her affidavit ⁷ that after speaking with her doctor on the 20th, she had a "serious case of cold feet" about the adoption and was wondering what it was that she really wanted and whether she was doing what everyone else wanted her to do. She shared her concerns with the HCAS worker and asked that they hold off while she sorted things out. The next couple of weeks were the most difficult of her fostering career: she had problems with an older foster child who was out of control, D.H. was sick, her own children were going through difficult times and she was exhausted. The HCAS worker arranged for D.H. to be babysat so that Ms. [A.I.] could deal with these other matters.

15The HCAS worker's notes of her conversations with Ms. [A.I.] during this period reveal the extent of the [I.s'] ambivalence. In notes of a November 28, 2003 telephone conversation with first Ms. [A.I.], and then with Dr. [C.I.] ⁸, the worker notes Ms. [I.]'s references to her own health conditions including her deteriorating sight and consequent reluctance to drive and that her doctor will say that this [adoption] is not a good idea; and Dr. [C.I.]'s desire that [A.I.] not make a decision for his sake; that "there's just no answer" and "we are not reasonable people with this" and "we are torturing each other". Dr. [C.I.] is noted as worrying that the Child "is going to have issues; better to do with healthy parents -- is it fair for him"; and "heart keep; head wrong decision".

16On December 2, 2003, the HCAS worker Shirley Hynd called and told Ms. [A.I.] that she needed to make the decision as the D.s were impatient and wanting to look at another child if D.H. was not going to be the one; they had cried when they learned that the applicants were thinking of keeping D.H. Looking back on it, Ms. [A.I.] wrote:

I felt even more guilt. They seemed so sure they wanted him and I seemed to be so unsure as to what I wanted. On December 4th, 2003, I spoke with Shirley again. I told her that nothing was clear. That she should do what she had to do, the decision was not getting any clearer. I told her I wasn't sure I could get through it, she said she would be firm if I wavered. We agreed to proceed quickly. She called back to say that she would bring the adoptive family to my home that evening.

17In the same exhibit to her affidavit, Ms. [A.I.] continues that she had a conversation with Ms. Jansen, another HCAS [page672] worker, about two hours after the conversation with Ms. Hynd, and felt that she had made the wrong decision. She and her husband went through with the planned meeting that evening with the D.s, but she stated that they both cried throughout. After the meeting, Ms. Hynd asked how she felt and Ms. [A.I.] said she didn't think she could do it; that Ms. Jansen had asked what D.H. would want her to do. Ms. Hynd said it was unfair that Ms. Jansen had said that when she did not know "how much we had agonized over the decision".

18In her notes of the December 4 telephone conversation, the HCAS worker records:

t/c from [A.I.]; she and [C.I.] up most of the night, -- have made decision to move [D.H.] to D.s; -- could they (D.s) be available tonight; -- asked if sure of decision, should we meet (she, [C.I.] and I) tonight as discussed to review decision because once we start visits, there's no turning back. [A.I.] confirmed decision is made -- lets proceed with PPV [pre-placement visits]

The Adoption Process Begins

19However upset and ambivalent the [I.s] were, the HCAS understood that they were nevertheless prepared to proceed with the D.s' adoption plan. When the applicants met with the D.s and the HCAS adoption worker at the applicants' home on December 4, 2003, a transition plan was developed with a schedule of daily, increasing contact between the Child and the D.s. It was to commence the following day, Friday, December 5, 2003, at the applicants' home, and culminate with D.H.'s permanent placement in the D. home on December 23, 2003. The applicants committed to assist with the Child's transition. Ms. [A.I.] advised the worker that she continued to be ambivalent and was advised that the HCAS would have to be firm in its decision once the transition strategy began. The D.s described the meeting of December 4th in their affidavit ⁹, stating that the [I.s] seemed genuinely committed to making the transition as positive for D.H. as possible. They all discussed the D.s' plan to change D.H.'s name and how to make that change an easy one for him.

20Following this December 4, 2003 meeting, and in accordance with the agreement reached at that time, pre- placement visits occurred as follows:

December 5, 2003 -- visit by D.s at the foster home;

December 6, 2003 -- visit by D.s and the two other D. children at the foster home; [page673]

December 7, 2003 -- visit by D.s and the two other D. children at the foster home;

December 8, 2003 -- visit by B.D. at the foster home;

December 9, 2003 -- visit by B.D. at the foster home with the Child coming to the D. home later that day;

December 10, 2003 -- Child at the D. home from 10:00 a.m. until 4:00 p.m.;

December 11, 2003 -- Child at the D. home from 11:45 a.m. until 3:45 p.m.;

December 13-14, 2003 -- Child stays overnight at D. home;

December 16, 2003 -- Child at the D. home from 10:00 a.m. to 6:00 p.m.;

December 17-18, 2003 -- Child stays overnight at the D. home;

December 19-21, 2003 -- Child at the D. home.

21Following the visit of December 9th, Ms. [A.I.] told the HCAS worker that she felt that she had made the mistake of her life. The worker noted that she had provided "support around what appeared to be a grieving process" ¹⁰. The worker noted that she provided Ms. [A.I.] with similar support after a subsequent visit when Ms. [A.I.] was tearful. The worker recorded the further visits without recording any similar expressions by Ms. [A.I.]. On the other hand, Ms. [A.I.] asserts in her affidavits that she was constantly begging the workers to stop the process during these visits ¹¹.

The [I.s] Object

22The pre-placement visits occurred as agreed upon until December 22, 2003, which was to have been the penultimate pre- placement visit with the child coming to the D. home from 10:00 a.m. until 5:00 p.m. then returning to the [I.s] for his final overnight with them prior to moving to reside with the D.s. To this date, the [I.s] had co-operated and assisted with the Child's adjustment to his adoptive home. The HCAS considered that the Child was well-prepared and ready to transfer. [page674]

23On Monday, December 22, 2003, Ms. [A.I.] notified the HCAS worker Shirley Hynd that she would not permit the final pre-placement visit, scheduled for that day, to occur and that "the adoption process needed to stop" ¹². Ms. Hynd said such a decision was above her and she would have the supervisor, Lynne Barker, call. When Ms. Barker called, she told Ms. [A.I.] she would have to consider the issue and would call back.

The HCAS Considers the Issue

24Following her conversation with Ms. [A.I.], Ms. Barker initiated a series of meetings and discussions within the HCAS. Ms. Barker met with Ms. Hynd who advised that she felt that D.H. was ready for the move; that the [I.s] understood that the process was underway, reconsidering was not an option and D.H. should move. Ms. Barker met with Mr. Tee, a manager, to review the case, but no resolution was reached. She then arranged a meeting with Roy Walsh, the Executive Director. She minuted this meeting ¹³.

Meeting with Roy Walsh -- reviewed case and expressed position that D.H. should move. Also discussed was the ambivalence in the past by [I.s], the high quality of care D.H. received from the [I.s], attachment issues and what would be in D.H.'s best interest, the fact that [I.s] were not adoptive applicants and fully supported the adoptive process up until this point and that the [I.s] had refused on several occasions to adopt D.H. Roy was to consider situation further, but wanted the process slowed down.

25Ms. Barker went to the D. home to brief them and later on the 22nd called Ms. [A.I.] and advised that the decision was that the adoption would proceed as planned. Ms. [A.I.] refused to meet to discuss any transition and wanted to speak to Mr. Walsh. He was unavailable and it was suggested that the [I.s] sleep on the decision and resume talks on the 23rd.

The Child is Placed with the D.s

26The HCAS records indicate that on the 23rd, Ms. Barker and Mr. Walsh met and a meeting was again suggested to Ms. [A.I.] and refused as she wanted to speak directly with Mr. Walsh. Ms. Barker said she would suggest that Mr. Walsh call around 2:30. There was then a meeting of Ms. Barker, Mr. Tee and Mr. Walsh at which Mr. Walsh stated that they should attend at the [I.] home to try to mediate the situation, but that the decision [page675] was to move the Child and the move should occur soon. It was decided to contact the police for assistance if the mediation ended unsuccessfully. They went to the [I.] home, with the police remaining in their vehicle up the street. Dr. [C.I.] spotted the police and when the discussion did not result in agreement, as he was unwilling to let D.H. go, the police were brought in and D.H. was peacefully delivered and was taken to the D.'s home ¹⁴.

27Apart from alleging a promise by Ms. Barker not to remove D.H. that day, the version of events on the 23rd from the [I.s] is not significantly different ¹⁵.

The Review

28 Section 68 of the CFSA requires a CAS to establish a written review procedure, which must contain an opportunity for the complainant to be heard by the board of directors. The [I.s] initially complained to the HCAS internally, and at the end of January 2004, the HCAS board referred them to the external review process. On February 3, 2004, the [I.s] requested a Director's review of the HCAS decision refusing to place D.H. with them. Mr. Giesbrecht was appointed on April 16th to conduct the review and the initial meeting was held on May 28th when he met with Mr. Walsh and the [I.s]. The D.s were not parties to the review. On June 15th documents and witness lists were exchanged and the hearing date set for June 28th.

29The review hearing began on that day and continued on the 29th. The [I.s] called Dr. Barry Cook to give evidence. He had done a parenting assessment of D.H.'s biological parents when D.H. was five months old, had met the [I.s] at that time and had recommended that they be considered as potential adoptive parents. He had no involvement with D.H. since then, nor with the D.s at all. There was evidence that he had counselled Ms. [A.I.] after the placement of D.H. had taken place. In response to allegations about the D.s placed before him by Ms. [A.I.] in examining him as a witness, Dr. Cook made comments suggesting that the Child had suffered trauma because of being moved; that the trauma could be undone but it would be key that the adoptive family was able to identify and respond to the Child's distress. He recommended that the adoptive parents be given professional help with this. He also commented on his concern as to the attachment of the Child to the adoptive parents, again based upon statements put to him by Ms. [A.I.]. [page676]

30The HCAS responded by engaging an outside expert, Ms. Diane Randall, who met with the D.s, observed them with the Child and reported on July 22, 2004, that the adoptive family were not in need of the therapy recommended by Dr. Cook.

31The Director responded to Dr. Cook's concerns by proposing that an independent assessor be engaged to determine the degree of attachment between the adoptive family and the Child and also the degree of current attachment to the foster family. Over the objection of the HCAS, he appointed Dr. Cook to perform this task, although other names were put forward. The HCAS expressed concern that other obligations would prevent Dr. Cook from completing this new assignment in a timely fashion. Dr. Cook was not contacted by the Director until July 22, did the interviews in September and did not complete his report until mid-October.

32When they learned of the appointment of Dr. Cook to perform the assessment, the D.s objected because they regarded him as biased as he had already testified for the applicants and been critical of the D.s without having met them. In their affidavit, they refer to an occasion in February 2004, when they met with the [I.s] to discuss access to the Child and Ms. [A.I.] stated that she had consulted Dr. Cook since December 23, 2003, and he had advised that the Child should be returned to her as soon as possible. Nevertheless, in the end they co- operated with Dr. Cook, but it seems likely that the event described in their affidavit contributed to their stress during the interviews with him.

33The D.s were interviewed, along with D.H., at the HCAS offices on September 14th. They say that they were not allowed to bring any familiar items for D.H. to play with, were extremely nervous during the one-hour meeting and were unable to interact with D.H. on a normal or typical basis. They were anxious to be seen in a more natural setting and asked Dr. Cook to come to their home, which he did on September 25. They felt that they were more at ease, but still fearful, on that occasion ¹⁶. He did not refer to his observations at this home meeting in the report.

34The HCAS advised the Director on July 6th, 2004, that it wished to call evidence to rebut the comments made by Dr. Cook about the adoptive family. This intention was confirmed in a letter of October 29, which was forwarded to the [I.s] by the Director. This rebuttal evidence ultimately included a report from Dr. Robert Seim, an expert in issues of the attachment of children to [page677] parental figures, who was engaged by the HCAS to perform that assessment on October 6, 2004, while Dr. Cook's report was being awaited. The D.s were interviewed by Dr. Seim on October 27 and November 2, 2004. They felt much more comfortable with Dr. Seim ¹⁷. Unfortunately, Dr. Seim's report was not available until November 15th, very shortly before the date set to resume the hearing, (November 17th), and was delivered to the Director and the parties on the 16th.

35Dr. Cook's report dated October 18 was based on interviews in September 2004 during which the adoptive parents played with D.H. and later the foster parents did so. The interviews were at the HCAS offices. Dr. Cook concluded that D.H. was securely attached to Dr. [C.I.] and "secure but ambivalent" to Ms. [A.I.] but that he had "avoidant" attachment to Mrs. D. and a disorganized one to Mr. D.; that he could easily move back to the [I.] home; that he would be at emotional risk if left in the D. home and would lose his "only psychological parents", Dr. and Ms. [A.I.].

36Dr. Seim's report was confined to the level of attachment between the D.s and D.H. and to a critique of the report of Dr. Cook. He saw the D.s and D.H. on two occasions in their home totalling four hours and 15 minutes, during which he observed interaction between D.H. and the adoptive parents, the siblings and the extended family. As background, he noted that children make attachments to significant persons beginning about six months of age and the most sensitive period extends until about 48 months of age when children readily form attachments under conditions of adequate nurturing. The critical importance of such attachment for later healthy development is noted. Children who fail to establish attachments in childhood are at risk of inability to form them later in life. In his actual observations of the family he noted that D.H. was strongly attached to both adoptive parents and exhibited "classic attachment behaviours" towards them and their son. In the second interview with the extended family, th e classic pattern of attachment was observed toward the various family members. He concluded that the child D.H."demonstrates strong positive attachment to the adoptive parents and extended family".

37As to Dr. Cook's report, Dr. Seim wrote that Dr. Cook found an ambivalent attachment of D.H. to Ms. [A.I.], and explained the ambivalence by reference to her high level of stress, without noting that the same argument could account for his findings as [page678] to lack of attachment to the D.s, who were also under conditions of high stress. Dr. Seim contrasted his findings in the home of the D.s with those of Dr. Cook in the "lab-like" environment of the HCAS offices in conditions of high stress.

38When the hearing resumed, the Director offered the [I.s] an adjournment to November 29th to enable them to consider the additional evidence, but they refused, insisting on proceeding with the hearing at once. The hearing proceeded, the Director admitted the additional evidence and ultimately found it persuasive. The hearing concluded on November 19th and the report of the Director was delivered on December 10th.

39The Director confirmed the decision of the Society to place the child with the D.s for adoption. He found that:

The Society's decision to pursue an adoption plan with the D. family and not with the Applicants is justifiable in that it was better to proceed with a family that was consistently clear in its intention to adopt, and it was better to complete a permanent placement as early as possible, and it was better not to confuse the Child as he was well prepared to transfer to the D.'s home immediately. ¹⁸

40The Director accepted that both the applicants and the D.s were excellent families. Dr. Cook and Dr. Seim had reached quite different assessments of the nature and quality of the attachment between the Child and the D.s. The Director concluded that the attachments between the Child and the D.s were strong and secure. In deciding not to accept Dr. Cook's contrary opinion, the Director relied upon the evidence offered by the therapist, Ms. Randall, and the HCAS's adoption worker, Ms. Shirley Hynd.

41With specific regard to the issue of continuity of care, the Director found:

The Child has been able to form a new strong and secure attachment with the D.'s. I am concerned that to break the attachment that the Child has with them will result in another loss for the Child with a resultant increase in risk of harm to him.

Additionally, I note that the fact that the Applicants and the D.'s participated in a transition strategy during December 2003, which allowed the Child to understand that he had the approval of the Applicants to form new attachments with the D.'s, has most likely assisted in the Child's successful attachment to the D.'s.

It is for these reasons that I do not support removing the Child from the D.'s home. To move him would be to add one more loss to his history and it is clear to me that the accumulation of losses over time exponentially increases the risk of harm. These risks include reactive attachment disorder [page679] and separation anxiety which lead to a child finding it more difficult to build trusting relationships and a host of other adverse consequences.

Accordingly, with respect to the issue of continuity of care and attachment I support the Society's decision to place the Child with the D.'s and not with the Applicants for the purpose of adoption ¹⁹.

The Issues: 1. Delay

42The applicants and the OCL submit that the review process was fatally flawed by excessive delay. The delays complained of are:

(a) the period from December 23/03 to February 3/04: This time was spent in discussions which failed to resolve the issues, attempts to deal with the issues via the HCAS complaints procedure, a discussion of the matter at the HCAS board of directors and, in late January, a letter from Mr. Walsh to the applicants advising that the board felt they had no authority and the applicants should raise their complaints by requesting a Director's review from the Ministry;

(b) the period from February 3/04 to April 16/04: During this period the Ministry selected Mr. Giesbrecht as Director to do the review. There was no standing file of available people from which to choose and the process took too long in the view of the applicants, who also complain that the Ministry supervisor did not inquire about other candidates who might start the review sooner than Mr. Giesbrecht who had said he could not start for several months;

(c) the period from April 16/04 to May 28/04: This is the time lapse between the appointment of Mr. Giesbrecht and the first meeting with the parties.

(d) the period from May 28/04 to November 19/04: This is the period from the initial meeting to the completion of the hearing. It should be noted that the hearing began on June 28, continued on June 29 and November 17 and 19 and was reserved. The decision was released December 9, 2004.

43The applicants have individual complaints as to each of these periods, but I will first consider the overall delay. The total elapsed time from complaint to decision was 306 days, some ten months. In the circumstances of determining the future of a child who was some 13 months old at the start of the adoption placement process, such a lapse of time seems scandalous, as I said in the course of the argument. Subsequent analysis of the reasons for this length of time makes it more understandable without making it a model to be followed. [page680]

44One useful way in which to assess the time taken for this process is to compare it with various provisions of the CFSA, the Family Law Rules, O. Reg. 114/99 and also s. 26 of the Children's Law Reform Act, R.S.O. 1990, c. C.12. The last- mentioned provides:

26(1) Where an application under this Part in respect of custody of or access to a child has not been heard within six months after the commencement of the proceedings, the . . . local registrar of the court shall list the application for the court and give notice to the parties of the date and time when and the place where the court will fix a date for the hearing ...

45The elapsed time from the complaint of February 3 to the beginning of the hearing on June 28 was 144 days, well under the six months set out in s. 26 for cases in respect of custody or access to reach trial. However, other time limits in other kinds of family cases are more stringent. Rule 33(1) of the Family Law Rules provides a maximum time for completion of every child protection case of 120 days to the hearing. It applies to family law cases in the court and so is not directly applicable, but serves as a guide to acceptable delays. Similarly, s. 51 of the CFSA, which provides that the court shall not adjourn a matter under Part III (Child Protection) for more than 30 days unless the parties consent, serves as a guide, albeit it is found in a different Part of the CFSA. It is also true that s. 144 itself does not place any time limits on the review which it authorizes.

46Over 100 days of the elapsed time was spent in adjournment, awaiting the report of Dr. Cook. This report was made necessary by questions put to Dr. Cook by Ms. [A.I.], based on her ideas about the conduct of the D.s and their relationship to the Child. As the D.s were not parties and were not present, the truth of Ms. [A.I.]'s ideas could not be tested at the hearing, but the answers gave the Director concern and he commissioned Dr. Cook to make the report. All concerned expected Dr. Cook's report to be available much sooner than it was, but it is not the fault of the Director, the parties or the s. 144 process that this added delay took place. Obviously, the hearing could not proceed the moment the report was received on October 18; it took time to arrange the hearing and a further month to November 17 is hardly surprising.

47The applicants and the OCL complain that the applicants were put in an impossible position by the admission of the report of Dr. Seim and the associated material sent to them on November 16, and that it should have been rejected for that reason alone. But the Director offered a two-week adjournment for study of the Seim report. Given that there had been a delay of 100 days [page681] to receive and consider the report of Dr. Cook, the added delay of two weeks to consider the report of Dr. Seim in response to that report would have been modest indeed. That further delay was not a compelling reason to reject the evidence.

48As to the intermediate periods of time, item (a) refers to the period when the [I.s] were dealing with the HCAS internally. It was submitted that the HCAS was at fault for not immediately directing them towards a s. 144 review. Surely it is not unfair for the HCAS to spend time with the applicants attempting to resolve their opposition to the placement, particularly bearing in mind that HCAS workers initially believed the problem was one of working through the [I.s'] grief. Further, as noted already, there is statutory requirement for a complaints policy. In any event, the HCAS did advise the applicants that the s. 144 procedure existed, as could a lawyer had they chosen to consult one. I do not accept that the actions of the HCAS in this period of time were unfair to anyone. Further, if a Director's review had been asked for in the first week of January 2004, there is no reason to believe that there would have been a decision before the summer of that year. This complaint by the applicants does not ad dress the operative reasons for the lengthy delay in resolving the issue.

49Items (b), (c) and (d) relate to the appointment of the Director and the conduct of the hearing. It was submitted that the review was "irreparably flawed by the inordinate delay in its completion". It was contrary to the philosophy of the CFSA to have a five-month delay in getting the review started. That last point is true, as the discussion of time periods above indicates, but I do not agree that the review was flawed in such a fashion that it must be quashed for this delay.

50As submitted by the respondents, an adjudicator will not lose jurisdiction to proceed with a dispositional hearing solely on the basis of delay, even when that delay infringes upon statutorily prescribed time limits, so long as it is guided in that regard by the best interests of the child.

51In L. (R.) ²⁰, three children were apprehended from their natural parents in November 2000, and placed in the care of the local CAS, which placed first one, and then all three, with the appellants in the case as foster parents. In time, the appellants came to wish to adopt the children and presented a plan to this effect. In late 2001, certain family members also presented a plan of care which would have placed two children, who were twins, in [page682] one home and the third in another. The CAS proposed to accept the family plans and, in May 2002, so advised the appellant foster parents who then applied to the Superior Court for an injunction to prevent the three children from being moved from their home until the completion of the Child Protection proceedings which were still pending in the Ontario Court. An interim order was made on May 22, 2002, and the children continued to reside in the foster home. The CAS moved in August 2002 to dismiss the foster parents' motion and succeeded. The foster parents appealed, submitting that due to the inordinate delay the case fell outside of the ambit of the CFSA and provided a justifiable basis for the exercise of the court's parens patriae jurisdiction. The appeal was heard in November 2002, two years after the apprehension of the children. The court expressed its concern at the inordinate delay, but continued at para. 46:

It is our view, however, that the delay in this case does not bring this matter outside the ambit of the legislation as contended by the appellants. See: Children's Aid Society & Family Services of Colchester (County) v. W. (H.) (1996), 1996 8714 (NS CA), 25 R.F.L. (4th) 82 (N.S.C.A.) where the court held that the court does not lose jurisdiction to proceed with a dispositional hearing beyond the stated time limit as long as it is guided in that regard by the best interests of the child. Thus, contrary to the appellants' submissions, the Act continues to be a complete code although the timelines contemplated by the Act are exceeded. Such an approach is consistent with the legislative scheme as a whole. When the Act is considered as a whole, it becomes clear that extended periods of temporary care in a foster home, while unfortunate, do not fall outside the ambit of the legislation. What is important is that the time limits under the Act be given a construction consistent with the best interests of the child.

52Considering the L. (R.) decision in the context of the CFSA, it seems to me that the issue to be addressed is whether the adjournment delay arose out of concerns related to the best interests of the Child. I have recounted above how the question which Dr. Cook was asked to address arose from the premises contained in questions asked of him by Ms. [A.I.] relating to the attachment of the Child to the D.s and their treatment of him. While the Director had originally stated to the parties that the focus of his inquiry would be the events of December 22 and 23, he was bound by the legislation as a whole to act in the best interests of the Child and so he necessarily widened the inquiry to include the allegations made by Ms. [A.I.]. This predictably caused a delay while the report was being prepared. That the delay was longer than expected was most unfortunate, but does not alter the important fact that it was occasioned in the pursuit of information relevant to the best interests of t he Child. In my opinion, the delay for the report did not create unfairness, [page683] procedural or substantive, and the report contributed to the overall substantive fairness of the proceeding.

53I conclude that while the overall length of time from the complaint to the decision was much too great from the perspective of taking the Child out of limbo and determining the plan for his future, the hearing itself was not unfair for that reason.

The Issues: 2. Procedural Unfairness

54It was submitted that the Director led the applicants to believe that the inquiry would be confined to the events of December 22-23 and the inquiry in fact covered much more. However, the major additional topic was the one raised by Ms. [A.I.] herself through Dr. Cook, as noted above: that the Child continued to be attached to the [I.s] as parental figures rather than adapting to the D.s. That this issue brought forth a response from the HCAS in the form of an expert report dissenting from Dr. Cook's views cannot have been a surprise. That the Director commissioned the Cook report did not make it "his" report or somehow definitive or irrebuttable. It was just another piece of evidence.

55Dr. Cook's report was dated October 18 and received shortly afterwards. The HCAS advised the Director on October 29, 2004 by a faxed letter, which the Director forwarded to the applicants by courier, as follows:

The Society is preparing written submissions and evidence in response to Dr. Cook's report, and we hope to be ready to proceed with the hearing by the week of November 16, 2004. The evidence will be in written form, and will be attached to the submissions. The witnesses will be available to attend the hearing, should you wish them to do so.

56Although they received this letter, it does not appear that the applicants consulted counsel again until they had received the HCAS' new evidence. The applicants made no objection to the Director about the proposed new evidence prior to the hearing resuming on November 17. On November 16, Ms. [A.I.] contacted counsel. She was feeling overwhelmed by the new evidence and didn't know what to do. She said that counsel told her that there was nothing he could do and they should finish the review. They did not retain him, nor ask for an adjournment to retain someone else.

57The applicants submitted that the Director created procedural unfairness when he admitted the Seim report into evidence. As noted, once Dr. Cook was engaged, the presentation of such a report was entirely predictable and did not expand the scope of the inquiry. That expansion had taken place in June. The [page684] Director was faced with a decision whether to admit additional evidence bearing on the best interests of the Child or reject it because of late submission. To have rejected it would deprive him of potentially valuable information and possibly lead to an erroneous understanding of the best interests of the Child, his primary concern. Indeed, when pressed on the matter by the court in argument, counsel for the applicants conceded that the Seim report really had to go in ²¹. To accept it without an opportunity for the applicants to reflect on it and obtain advice from Dr. Cook about it would certainly have caused procedural unfairness to the applicants. However, they were offered that opportuni ty and refused it.

58The OCL referred us to Baker ²² where the Supreme Court emphasized that the administrative decision-making process should be open, fair and appropriate to the decision being made and its statutory institutional and social context; and that there must be an opportunity for those affected by the decision to put forward their case fully. Counsel submitted that allowing the Seim report and the associated evidence was a clear contravention of these principles. In support, counsel observed that the exchange of relevant documents had taken place long before, in June, and there had been no notice to the applicants that further evidence was to be tendered. Of course, neither the Cook nor the Seim reports existed in June and neither could have been listed then. I have already observed that the scope of the inquiry, as described by the Director in May, had been changed by the commissioning of the Cook report in June, of which the applicants were aware. The applicants received notice of the HCAS' intentio n to proffer new evidence in response to Dr. Cook's report in late October, only days after the HCAS received that report.

59The principles in Baker include the statement that the procedure should be appropriate to the decision being made and its context. This case is about the best interests of the Child and that is the context which must inform decisions on evidence such as this one. In that context, what is said in Baker supports the view that the fresh evidence on the child ought to be admitted and the parties given time to prepare to meet it, rather than exclude it altogether. [page685]

60The Director made a reasonable decision: he accepted the report and other documents because they were relevant to the best interests of the Child and gave the applicants an offer of time to consider. The applicants refused that offer. Both the Cook and the Seim reports were current, the former was based on September interviews and the latter on interviews of late October and November 2. In receiving these reports, the Director did what was best for the Child without creating any procedural unfairness to the applicants.

61Finally, the applicants submit that, as they were unrepresented, the role played by Ms. Megan Pallett was unfair. Ms. Pallett is senior legal counsel for the HCAS and was thoroughly familiar with the case from the birth of D.H. onwards. She attended the hearings, although not the May 28 meeting, as assistant to Mr. Walsh, the Executive Director of the HCAS, who asked the questions and made the submissions for the HCAS. She was actually called as a witness by the applicants to testify as to a particular meeting and whether Ms. [A.I.] was distraught at it. In her affidavit she states that she intervened three times at the hearing on June 29, without objection by the applicants, once to clarify a point and twice to prevent discussion of other children not involved in the review. In their first affidavit, the [I.s] stated at para. 12 that no lawyers participated in the June hearings, but that Ms. Pallett "gave information". They made no complaint about her conduct at that time.

62By his letter of October 29, 2004, Mr. Walsh advised the Director, who copied the applicants, that he would be absent from the country for a period from November 9û27 and if the hearings were resumed during that period he would ask Ms. Pallett to appear on his behalf. Despite this information, the Director scheduled the resumption of the review during the period when Mr. Walsh was away.

63At the opening of the November 17 hearing, Ms. Pallett appeared as HCAS representative because of the absence of Mr. Walsh. Ms. Pallett stated that she would only act as HCAS representative, that is, ask the questions, if the applicants were in agreement; otherwise she would agree to an adjournment until Mr. Walsh returned. The applicants say that they objected, but they also say that they refused to agree to an adjournment. Eventually, they agreed that Ms. Pallett could act as HCAS representative, although the applicants say it was not to be "as a lawyer". There is a conflict in the affidavits as to the role she then played. The [I.s] stated that her new role altered the informality that had previously prevailed and that she virtually took charge of the proceedings, conducting examinations. Ms. Pallett stated that [page686] her participation was relatively unobtrusive: confined to a few questions and a request for a ruling on whether the CAS could file a reply to the [I.s] new documents. She stated in her affidavit, and it was not challenged, that she did not examine the witness Dr. Seim, probably the most important of the HCAS witnesses.

64There was also a discussion prior to commencing the hearing about an incident at a professional conference that the Director had attended and Ms. Pallett had heard about. This was in the presence of the [I.s] who felt excluded. This incident did not occur during the hearing itself and certainly does not give rise to procedural unfairness simply because the Director and Ms. Pallett had a brief social conversation.

65On the final day, November 19, Ms. Hynd gave evidence, answering questions from the Director. Another social worker, Ms. Keyes, was called on behalf of the applicants and questioned by Ms. [A.I.]. Ms. [A.I.] disagreed with Ms. Keyes' testimony and interrupted her and so when Ms. [A.I.] finished, Ms. Pallett says she asked the witness to clarify the dates and to summarize her observations uninterrupted.

66I am not in a position to choose one or the other version of the role of Ms. Pallett based on the conflicting affidavits, but it is unnecessary to do so since the evidence of the applicants on the point does not reveal any basis for finding that they did not receive procedural fairness or suffer any prejudice in presenting their case as a result of the acts of Ms. Pallett. No doubt Ms. Pallett was an effective representative for the HCAS, but they agreed to her acting in that role knowing that she possessed legal skills, and refused the Director's offer to adjourn to a day when Mr. Walsh could be present instead. In addition, as already noted, the [I.s] had already consulted their present counsel twice, once in the summer and again on November 16th after receiving the additional material from the HCAS. They did not raise the role of Ms. Pallett with him, nor did they retain him. Their own evidence shows that the [I.s] could have afforded counsel, but chose to be unrepresented and continued with that ch oice even after it became clear to them that it had been a mistake.

67In summary, while the proceedings took longer than such a child-centred proceeding ought normally to take, the main reason was the time required to obtain evidence, which was necessary to assess what was in the best interests of the Child. The overall time was not unreasonable given the particular circumstances. There was no resulting prejudice to any party in the presentation of the case, given that the applicants could have [page687] had time to prepare by asking ²³. The proceedings were not "unworkable" as the applicants submitted. The process worked. The Director correctly reacted to the evidence as it was presented by enlarging the scope of the hearing to address the current situation of the Child, accepted relevant evidence on that point from both sides and came to a conclusion promptly after the end of the hearing. The applicants knew the case they had to meet as the hearing progressed and were offered the time to prepare to meet the new developments as they occurred. There can be no legitimate expectation that the planned course of a hearing will not be changed to accommodate the requirements of a fair and adequate hearing that deals with the issues raised by the evidence as it is heard. In assessing the overall fairness of the hearing, it must not be forgotten that the D.s were not parties at all.

68Finally, judicial review is a discretionary remedy. At bottom, this is a case about the best interests of the Child. This child has been placed for adoption and has been with the D.s for some 17 months of his 31 months of life. This prolonged proceeding has kept him and the D.s in a situation of great uncertainty. Such delay was certainly not in the Child's best interests, and was unfair to him. However, that is not a form of unfairness which can be remedied by a new hearing; on the contrary, such a new hearing, whether before a new Director or the Superior Court, would inevitably prolong the uncertainty and compound the unfairness to the Child. The OCL, while supporting a new hearing, still submitted that we could not ignore the length of time that D.H. has been with the D.s: however bad the Director's decision may have been, the fact is that D.H. has been with them since December 2003. There is ample evidence in the report of Dr. Seim as to the adverse effects of stress on the attachment process for a child. The level of stress in the D. household over this litigation and the uncertainty as to whether D.H. is going to be their son permanently must be high. Even though the hearing was not perfect, it would take proof of real prejudice to the applicants in the presentation of their case for the court to set the decision aside and prolong the uncertainty as to the Child's future. His best interests require finality as to his status. In the absence of such proof of prejudice, I would exercise my discretion to refuse to quash the decision. [page688]

69For these reasons, I would not quash the report of the Director on grounds of procedural unfairness.

The Issues: 3. Charter Issues

[70] The applicants assert that on December 23, 2003, the HCAS "apprehended" the Child and removed him from their care under police escort. They say that this contravened their s. 7 Canadian Charter of Rights and Freedoms protections because the state was aware that they wanted to adopt the Child. The applicants say that the psychological impact of the removal has impacted upon their security. Alternatively, the applicants say that, at the least, there is a s. 7 "security of the person" interest in the Child, which requires that any legislation that purports to deal with his custody must promote his best interests. They also refer to s. 11(b) as to trial within a reasonable time as an analogous situation. They further submit that s. 144 is impermissibly vague: the applicants could not know what it was they were required to prove or to respond to.

71Turning first to the applicants' alleged security interest, it is clear that the security of the person includes security of psychological integrity, but to make out a breach of s. 7 the state action must have a profound effect on a person's psychological integrity beyond the level of ordinary stress or anxiety. In New Brunswick v. G. (J.), ²⁴ [Lamer C.J.C. wrote [at para. 61]:

I have little doubt that state removal of a child from parental custody pursuant to the state's parens patriae jurisdiction constitutes a serious interference with the psychological integrity of the parent. The parental interest in raising and caring for a child is, as La Forest J. held in B. (R.), supra, at para. 83"an individual interest of fundamental importance in our society". Besides the obvious distress arising from the loss of companionship of the child, direct state interference with the parent-child relationship, through a procedure in which the relationship is subject to state inspection and review, is a gross intrusion into a private and intimate sphere. Further, the parent is often stigmatized as "unfit" when relieved of custody. As an individual's status as a parent is often fundamental to personal identity, the stigma and distress resulting from a loss of parental status is a particularly serious consequence of the state's conduct.

72How then do the applicants, as foster parents, match with this analysis? They are not the natural or adoptive parents, nor do they have custody of the child. The Child is a Crown ward who is in their care as contracted agents of the HCAS, itself an agency assigned the care of the Child by the Crown. They certainly have [page689] suffered the "obvious distress from the loss of the companionship of the child", referred to above, but their relationship with the Child is not one of "fundamental importance in our Society". Nor is the state's act of removing its ward from the applicants for the purpose of placing him for adoption"state interference with the parent-child relationship, through a procedure in which the relationship is subject to state inspection and review", or "a gross intrusion into a private and intimate sphere". Similarly, removing the Child for adoption purposes is not an act likely to result in "stigma and distress resulting from a loss of parental status" for the foster parents who do not have that status to begin with.

73The relationship with the Child under the CFSA is such that the foster parents are only entitled to advance notice and consultation before a foster child is moved when the child has been in their care for two years. As the D.s' factum puts it:

It would be entirely inconsistent with the comprehensive legislative regime relating to children in need of protection to suggest that the relationship between a foster parent and a child placed in his or her temporary care by the state is equivalent to, or of equal societal importance as, the relationship between a natural parent and his or her child.

[74] In my view, the applicants have no s. 7 Charter rights in respect of their relationship to the Child as foster parents. Nor can they assert such a right on behalf of the Child with whom they have no legal relationship except a contractual one to care for him as agent of the HCAS. If such a right is to be asserted it must be by the Crown whose ward D.H. is, or by the OCL.

75As to the Charter right to a speedy trial, assuming that it applies to these circumstances, I have already held that, in these particular circumstances, the length of time from complaint to hearing was not unreasonable.

76Finally, the applicants assert that s. 144 of the CFSA is impermissibly vague. There is no specified procedure and no time limits. The applicants could not know what they had to prove. The section does not require the best interests of the Child to be the basis for the review.

[77] In my view, the section cannot be invalid by reason of s. 7. That section is infringed where the deprivation of security is contrary to a principle of fundamental justice. The burden is on the applicants to prove both the deprivation and the breach of fundamental justice ²⁵. The Supreme Court has held that the best interests of the Child is a recognized legal principle but not a [page690] principle of fundamental justice. It would follow from this that s. 144 is not infringing the s. 7 Charter security rights of the Child by not expressly requiring a focus on the best interests of the Child. Further, as the paramount purpose of the CFSA is promoting the best interests, protection and well-being of children, s. 144 implicitly requires a focus on those interests. It is not devoid of guidance as to what is involved in the review. The Act provides a code for the protection of children and the Director will naturally be guided by the Act. Like any legislation, s. 144 must be read in the context of the CFSA in which it is found. As an exercise of a statutory power of decision, s. 144 must also be read in the context of the administrative law governing such decisions. When so read, there is no lack of clarity as to what the Director is to do and, in general terms, how he is to do it.

78I would dismiss the constitutional challenge to this legislation.

The Issues: 4. Standard of Review of the Director's Report

79I turn now to the substantive issues raised regarding the Director's Report confirming the decision of the HCAS not to place D.H. with the applicants for adoption. In this part of the case, the court sits to review the decision and not in appeal from it. In determining the standard of review, the court applies the analysis approved by the Supreme Court in a series of cases of which Pushpanathan ²⁶ is a prominent example. In these cases, the Supreme Court has developed the "pragmatic and functional" approach to determining the standard of review of administrative decisions, and the degree of deference to be accorded to the various tribunals, which the courts are called upon to supervise. In this approach, the standard of review is determined by considering four contextual factors -- the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and of the provision in particular; and the nature of the question. I turn to an analysis of each factor with reference to the case before us.

Privative clause

80There is no privative clause protecting the decision of a Director under s. 144 from review. This factor tends toward a lower standard of deference to the decision. [page691]

Expertise

81The expertise of the tribunal, here the Director, relative to that of the court, is the second factor. Discussion of this factor gave rise to submissions from the applicants attacking the Ministry for failing to maintain a list of suitable persons for appointment under s. 144, and for appointing as Director a person about whom the Ministry allegedly knew little ²⁷ and who could not begin his review for some time. In my view, this approach is wrong in principle. The expertise at issue is not that of the individual who happens to be appointed to hear the case. It is inappropriate to have standards of review which depend upon the individual characteristics of the current occupants of an office. Not only would such a standard lead to great uncertainty, it would lead to invidious inquiries and findings of competence on an individual basis requiring evidence of an intrusive and problematic nature, which is utterly irrelevant to the actual issue.

82It is important to recognize that the assessment of expertise in the pragmatic and functional analysis is not intended to measure the personal suitability of a particular appointee to make the decision confided to him or her. Rather, it is part of the effort to determine the legislative intent as to the finality of the decision in question vis-à-vis supervision by the courts ²⁸. Accordingly, it is legitimate to look at the tasks confided to the Director by the statute as indicating the level of expertise anticipated by the legislature and, therefore, casting light on this issue. The expertise of a tribunal may in part be judged by the:

... breadth, specialization and technical or scientific nature of the issues that the legislation asks the administrative tribunal to consider. In this respect, the principles animating the factors of relative expertise and legislative purpose tend to overlap ²⁹.

83In an article on recent administrative law decisions of the Supreme Court ³⁰, Professor Lorne Sossin points out that, to [page692] date, there is little judicial guidance on how to establish expertise. In Pushpanathan ³¹, three elements of expertise were identified: specialized knowledge, specialized procedures, and non-judicial means of implementing the legislation, but there is little guidance beyond identifying the elements. If a statute requires relevant qualifications for appointment to the tribunal, the court must certainly consider those, but should the court also review the functions of the tribunal and infer the possession of the relevant expertise? Or continue and review the actual administrative practices as to what expertise appointees generally have? At p. 36, Professor Sossin writes:

Expertise, as the above discussion indicates, may be understood from many perspectives -- as specialized knowledge, specialized experience, specialized qualifications or specialized tasks, among others. Each perspective may call for a different line of inquiry, give rise to different evidentiary problems or problems of proof, and may lead to a differently tailored degree of deference.

84At p. 37, Prof. Sossin concludes:

On the one hand, it is clear courts have little appetite for a standard of review framework that shifts from day to day according to the vicissitudes of particular cases, settings or decision-makers. Whether a tribunal sought an outside legal opinion or not on a particular matter, or whether a particular decision-maker is a lawyer or not, or happens to have significant experience in specialized capacities sheds little light on legislative intent. On the other hand, a framework that ignores the day to day realities of decision- making and institutional competence risks inviting in the very rigidity and artificial formalism that the pragmatic and functional approach was created to avoid. A statutory mandate to "be sensitive to human rights", for example, sheds little light on the institutional realities that give (or fail to give) form and substance to legislative intent. Thus courts must seek a principled and practical balance between the two and, I would argue, should be as transparent as possible about doin g so.

85Bearing in mind Professor Sossin's instructive analysis, I think that, in seeking a balance between inferring the necessary expertise from the statute on the one hand, and considering the evidence as to the institutional competence of the tribunal on the other, both practical and case law considerations lead to a focus on the legislative structure, since legislative intent is what we seek to understand. The practical considerations include the uncertainty created by a focus on the available panel, or possibly each adjudicator, the invidious nature of the inquiries required, the cost to the parties of procuring the necessary evidence, the lengthening of the administrative review process and the intrusion into the life of the [page693] adjudicator thereby created. From a case law point of view, it seems to me that if the Supreme Court wanted the personal characteristics of the adjudicator to be prominent, the court would have said so long ago, and I do not think that they should have more than a very minor place in the analysis. Nevertheless, the court must examine to some degree the administrative realities by which the legislative intent is sought to be implemented.

86The degree of deference should be assessed, as to the expertise factor, with reference to the statutory requirements, the permanence of the appointment, the history of the office, the breadth of the responsibility given to the office, the administrative arrangements to support the legislated goals, and, at least in the absence of egregious circumstances, a working assumption that the Minister will carry out her duty by appointing persons who are suitable for such responsibilities.

87A Director is a person appointed under s. 5(1) of the CFSA:

5(1) The Minister may appoint any person as a Director to perform any or all of the duties and functions and exercise any or all of the powers of a Director under this Act and the regulations.

88Neither the CFSA nor the Regulations made under it contain any legislative guidance to the Minister as to the requisite qualifications for the office, nor is there any permanence of appointment. An appointment as Director is to perform a specific function and not to be a member of an organized body with a Chair and a staff and an institutional memory. We were not provided with any handbook of policies or the like. The position is perhaps most analogous to that of a labour arbitrator, who is typically appointed case by case (albeit by the parties and not the Minister) and is not part of a statutory tribunal with an organized structure. On the other hand, the labour arbitrator is supported by an extensive body of jurisprudence. There is no evidence before us as to whether there is any body of administrative jurisprudence under the CFSA that would be comparable to that which serves as the institutional memory of the labour arbitrators.

89There are over 30 sections of the CFSA conferring powers or responsibilities upon a Director ³². They grant extensive powers and it is clear that Directors are performing important functions in the supervision of the operations of Childrens' Aid [page694] Societies, including the care of children, the adoption process and many other aspects of the care and protection of children. Some powers of particular relevance to the present analysis include supervision of the operation of CAS; determinations of the best interests of the child in respect of removal from a foster home or other residential placement; annual reviews of the status of certain Crown wards including the giving of directions in the best interests of the child; the giving of directions in the best interests of the child as to the removal of a child from one CAS to another or one placement to another; the review of the objections of a complainant who is dissatisfied with the CAS' response to their complaint; the making of decisio ns to launch child protection proceedings or to appeal such orders; the giving of consent to the adoption of a Crown ward or the adoption of a child out of Ontario; and, as in the present case, reviewing contested placement decisions. In several sections a Director is expressly authorized to do any act in respect of a child that a CAS might do.

90The breadth of these powers tends towards a higher level of deference to the office, but one must also consider other factors. There is no legislative direction as to the requirements for the office, nor is there any permanency to the office so that it can build an institutional memory and core expertise. It appears to be an office which is filled on a case-by-case basis. There is no institutional evidence before us. The affidavit of Mr. Filipowich, of the Ministry, contains a copy of the Agreement between the Ministry and the Director, which shows that the Director is engaged as an independent contractor for a limited term for the sole purpose of this matter and that he may be dismissed on seven days notice. There is no evidence of any administrative support from the Ministry other than the payment of his expenses and fees. The lack of institutional support tends toward the lower end of the deference spectrum.

91Finally, the heart of the task of the Director is to act in the best interests of the Child, which is part of the expertise of the office. This is an expertise which the court shares to a large extent because the court is also charged, in custody and similar cases, with the duty of so acting, and has experience in assessing the evidence to discern where the best interests of the Child lie. I conclude that, on the whole, persons entrusted by the Minister with the extensive powers accorded to Directors under the CFSA are likely to have "hands- on" expertise not possessed by the court, and this tends toward deference, but that they will not have greater expertise than the court in the mixed fact and law issue of determining the best interests of the Child. Altogether, the expertise factor, relative to the expertise of the court, tends to [page695] a low level of deference, except where the Director is assessing credibility and testimony generally, where his unique advantage in having seen the w itnesses must be recognized.

Purpose of the CFSA

92The third factor in the analysis is the purpose of the legislation and of the provision at issue in particular. The purposes of the CFSA are set out in s. 1 and the paramount purpose in s. 1(a): "(a) as a paramount objective, to promote the best interests, protection and well-being of children".

93Section 114(1) authorizes the person appointed as Director to review the decision and to confirm the decision, or rescind it and do anything further that the (CAS) may do with respect to the placement of the child. These are very broad powers and fully engage the expertise of the Director. He is given the widest area of discretion, in effect to overrule the CAS and do what he thinks it ought to have done in pursuit of the best interests of the Child. This is not only highly discretionary, but also intensely fact-driven. It is clear that the Director, in performing this function, must at all times have in mind the best interests of the child. Section 144(2) specifies one element in the analysis of the best interests of the child for special attention"the importance of continuity in the child's care". The function being performed under s. 144 thus is one to which the expertise of the Director is central. This factor therefore tends toward a higher degree of deference to his decision, again tempered by the fact that the court shares much of the relevant expertise.

Nature of the question

94The final factor is the nature of the question. Here the issue is whether the HCAS decision was appropriate as being in the best interests of the Child. This question involves the expertise of the Director in assessing the many considerations which entered into the decision of the HCAS and whether there were other considerations which ought to have been, but were not, considered. Here also, the function of the Director as the fact-finder, assessing the testimony of witnesses as to fact and of experts alike, gives him a unique advantage, as the person seeing and hearing and observing those witnesses. Again, the discretionary and fact-driven nature of the question tend toward a higher level of deference.

95The applicants submitted that the decision should be reviewed on a correctness standard, largely based on the Minister's alleged ignorance of the qualifications of the Director when [page696] he was appointed. However, a fact- driven decision based on expertise not entirely possessed by the court cannot lend itself to a correctness standard.

96The Ministry originally submitted that the standard should be the greatest deference to the decision. It should be upheld unless it is aepatently unreasonable'. However, in oral argument, counsel for the Ministry corrected his written submissions and urged the reasonableness standard.

97In J. (K.) ³³, this court upheld a Director's decision as aereasonable' but without elaborating on the analysis. Nevertheless, it is of some persuasive value.

98Based on the pragmatic and functional analysis just performed, the standard of review ought to be that of reasonableness. The decision is discretionary, fact-driven and lies at the heart of the Director's expertise, but it is unprotected by any privative clause and, importantly, it involves the best interests of the Child, which is an expertise shared, at least in part, by the court and which is an issue requiring the court to involve itself more fully than it might ordinarily ³⁴. As to the findings of fact and assessment of testimony, the court should defer to the Director unless there is no evidence which could support his findings.

The Issues: 5. Is the Director's Report Reasonable?

99The Director's Report is a careful and methodical analysis of the facts and of the reports and other evidence bearing on the decision at issue. There is an error in describing the process of disclosure where the Director includes the Cook report, the Seim report and Ms. Randall's opinion in the list of materials exchanged in June 2004, although they did not come into existence until later. In my view, this is a simple error with no relevance to this application. The correct facts as to the preparation of these reports are set out in the next paragraphs.

100The Director sets out the issues: first, the selection of the D. family rather than the applicants by the HCAS is contested by the applicants, and defended by the HCAS, on the basis of the [page697] best interests of the Child; and second, the consideration, mandated by the CFSA, of the importance of continuity of care, where each family contends that the Child is attached to them, that they are his psychological parents for this reason and that s. 144(2) requires awarding the Child to them.

Selection

101In his analysis of the first issue, the Director notes the consensus that it is in the best interests of the Child for an early permanent placement in an adoptive family. He continues:

To do a comparative inventory of the strengths and weaknesses of the applicants and the D.s family attributes is not helpful in this case in that both families are positive and suitable families. To go further than this and try to rank the families would not yield meaningful information in that the attributes of families are ever-changing and are not well suited to accurate grading, or comparison.

102The applicants submitted that in failing to perform such a comparative analysis, the Director committed an error of law and by focusing on the issues of the ambivalence of the applicants, the timeliness of placement and the readiness of the Child to undertake the transition, he asked himself the wrong questions. Reference was made to the comparative analysis of the two families undertaken by the Supreme Court in Beson ³⁵ and to the reasons in Dizio ³⁶ which stressed that the inquiry is into the best interests of the Child and not into the interests of the adults. In Dizio, this court criticized the Director because the report concentrated on the interests and qualities of B.W., the person from whom the child was removed. One would expect, this court said, to find a comparative analysis of the two families. But in the present case, the Report does not focus on the wrong parties, it is securely focused on the best interests of the Child and the Director did consider the suitability of the two families.

103The Director had evidence about these families on which it was open to him to conclude that there was little to choose between them: each would be a suitable family. The evidence included the important fact that the applicants themselves had participated in the placement planning and were enthusiastic about the D.s as a family for D.H. He also had the evidence of HCAS workers, of Dr. Seim and Ms. Randall who had examined [page698] the D. family, and he had the Cook report as to both families. He found that Dr. Cook's negative characterizations of the Child's attachment to the D.s had been refuted by Dr. Seim's report, the opinion of Ms. Randall and the observations of Shirley Hynd, the adoption worker. He concluded, at p. 11 of the Report:

Dr. Cook's assessment does not persuade me that the D.s are not suitable prospective adoptive parents nor that the Child's attachments to the D.s are anything other than strong and secure.

104The Director was of the view that, given the suitability of both families, the determinative factors in assessing the decision of the HCAS were those related to the best interests of the Child: the prolonged ambivalence of the applicants, the need for a timely placement and the readiness of the Child to accept the transfer. In my view, he committed no error of law in coming to this conclusion; these factors are highly relevant to the best interests of the Child.

105It was submitted by the applicants that the Director erred in considering their ambivalence because they had clearly signalled their intention to adopt D.H. before his removal from their home. They portray the transfer as "urgent and pre- emptive" and as similar to Boone ³⁷ where the CAS proposed to separate children from each other and move them to "unknown quarters" just before Christmas. This case is quite different from Boone. Here the HCAS was carrying out a plan which had been agreed to by the applicants, including the pre-Christmas timing, and for which the Child had been carefully prepared with the assent of the applicants until the last minute. This was not an "abrupt removal" of the Child and statements by courts in other cases that did involve abrupt and unplanned removals are of little value.

106As well, the applicants' signal of their intention was not as clear as they now maintain. They had given such signals before and resiled from them. The HCAS was bound to consider this history when deciding its course of action. If the applicants resiled again, the opportunity to place the Child with the D.s could evaporate. The Director made no error in considering the ambivalence issue as a live issue relating to the best interests of the Child at the time the HCAS made its decision.

107The applicants further submit that the HCAS failed to provide the applicants with the support necessary to assist the applicants to make the decision, and the Director erred in not [page699] considering that factor. Apart from this being an inappropriately adult-centred approach, it does not accord with the evidence. The HCAS assisted the applicants by delaying the commencement of the adoption preparation on November 21, reassured Ms. [A.I.], gave her time to consider the decision, kept in touch with her as she struggled with it and only after two weeks asked her to make the decision because the D.s wanted to look at another child if D.H. was not going to be the one. The evidence shows that Ms. [A.I.] herself understood the validity of that consideration.

108Dealing with the ambivalence issue, the Director reviewed the evidence, found that the HCAS had asked the applicants several times if they wished to adopt and had received refusals or ambivalent responses; that the applicants supported alternative plans, in particular the plan to have the D.s adopt the Child; that they had 'self-eliminated'; and considered the events of December 2003. He was aware of the applicants' explanations for their ambivalence, including the death of a baby in their care in September 2002, the breakdown of a foster placement of a troubled teenager and other pressures. Nevertheless, he concluded that the history of events "as described by the applicants" did not portray them as persons with a clear consistent unequivocal desire to adopt the Child and that the message conveyed was not a clear and affirmative answer to the question of whether they wished to adopt him. He found that the HCAS gave a fair warning that they had to draw a cut-off point and that was December 9, 2004 whe n the transition plan began. The applicants were ambivalent at the relevant time and their expressions of self-doubt presented strong reasons not to select them as adoptive parents over the D.s who voiced no reservations and were ready to start parenting immediately. There is ample evidence in the Record to support these conclusions.

109Turning to the timeliness issue, the Director found that the HCAS could not be faulted for following through with the plan to place the Child with the D.s as that avoided the delay involved in updating the applicants' home study and, more importantly, more time would have been required to ensure that the applicants' decision to adopt was completely settled. In view of the applicants' history, this was a reasonable finding.

110Finally, on December 22, the Child was almost finished with the transition plan and was doing well. The HCAS Plan of Care reports indicate that he was ready to make the transition. He was prepared for the change: he had been introduced gradually to the D.s and had been given signals from the applicants that he had their blessing to go to the D.s, and had spent considerable time in the D. home. To upset this plan, that had [page700] already commenced, would be confusing for the Child and not in his best interests.

111The Director concluded this section of the Report by finding that the HCAS decision to pursue adoption by the D.s and not by the applicants was justifiable because it was better to proceed with a family that was clear about the adoption; because it provided a permanent placement as early as possible; and avoided confusing the Child who had been prepared for the move. Having regard to the best interests of the Child, the Director found that the HCAS decision was reasonable.

112From the perspective of the argument of this application in April 2005, when we know that the applicants' desire to adopt has persisted and that their stance in opposition to the transfer was not, as the HCAS worker thought, purely the natural reaction of grief to be worked through with support and time, it was submitted that it would have been better to have delayed the removal of the Child to await the resolution of the problem. In my view, that is a hindsight approach and fails to give sufficient weight to what was actually known at December 23, 2003.

113In my view, there is evidence to support the findings of the Director where they are factual and the expert evidence and the expertise of the Director are engaged in the conclusions which he drew, all of which are reasonable.

Continuity of Care and Attachment

114The Director then dealt with his statutory duty to consider the importance of continuity in the Child's care. He noted the applicants' submission that the Child was securely attached to them at December 23, 2003 and the report of Dr. Cook supporting the view that the Child was indeed securely attached to [C.I.] and attached with some indications of ambivalence to [A.I.]. Dr. Seim did not assess the attachment of the Child to the [I.s]; his task was to assess the Child's attachment to the D.s as adoptive parents, which Dr. Cook had questioned. The Director noted that the Child's present strong and secure attachments to the D.s were attested to by Dr. Seim's assessment of November 15, 2004, but Dr. Cook's report characterized the Child's attachment to the D.s as "avoidant and disorganized/disoriented". There was evidence before the Director that the conditions under which Dr. Cook conducted his assessment of the D.s were not conducive to a relaxed interview. The D.s were understandably nervous and wer e not allowed to bring familiar objects for the Child to play with. When they brought the Child for the interviews with the applicants, the D.s noticed that the applicants had brought such [page701] objects with them. When Dr. Cook came to the D.s' home, they felt more relaxed, but Dr. Cook did not refer to that visit in his report. The Director found that the discrepancies between the two assessments could be explained by the unusually high stress level of the D.s during Dr. Cook's assessment, although he preferred to rely on other evidence.

115The Director resolved these opposed assessments of the present attachment of the Child to the D.s in favour of the analysis presented by Dr. Seim, which was supported by the HCAS worker Shirley Hynd with 24 years experience, and by Ms. Randall, the child therapist, not affiliated with HCAS, who had reported on the D. family in July. Ms. Hynd's evidence included a rebuttal to the statement of [A.I.] that worried Dr. Cook, that the D.s had changed the Child's name immediately on taking him. She praised the careful way in which the name change was accomplished. She also disagreed with Dr. Cook's concerns about attachment, stating in her affidavit that she had observed the Child on many occasions and he showed every sign of secure attachment to the D.s. In assessing the evidence of these two workers, the Director wrote:

It is my view that the professional assessors had such a short window of opportunity to assess the quality of the various attachments as opposed to the opportunities Shirley Hynd who had the benefit of long-standing and ongoing contact with the Child. Shirley Hynd's observations that the Child transitioned well into the D. household and that strong and secure attachments exist between the Child and the D.s are corroborated by Diane Randall's opinion letter confirming the Child is well settled in the D. household.

116The Director continued by referring to the agreed principle that a child who has a secure attachment to a caregiver is a good candidate for forming a new strong and secure attachment to alternate parents. The evidence showed that this Child was resilient and a good candidate to form new attachments and appeared to have done so as he is thriving in the D. home. He accepted that the Child had suffered a loss when removed from the applicants' home, but he had managed his loss and formed strong and secure attachments with the D.s. The Director expressed concern that to break that attachment would cause yet another loss to the Child and result in an increased risk of harm to him. He wrote:

It is for these reasons that I do not support removing the Child from the D.s home. To move him would be to add one more loss to his history and it is clear to me that the accumulation of losses over time exponentially increases the risk of harm. These risks include reactive attachment disorder and separation anxiety which lead to a child finding it more difficult to build trusting relationships and a host of other adverse consequences. [page702]

To justify taking the risk and consequent additional loss would require the possibility of the existence of a potential benefit that would outweigh the risk. In this case I am of the view that both families can provide a positive life experience for the Child and that to return the Child to the applicants would not offer the Child a benefit over what the D.s could provide. There is no additional benefit to the Child that would warrant taking the risk of another transition.

117A reasonable decision is one which is grounded in the evidence and contains a visible line of reasoning whose logic can withstand 'somewhat probing' scrutiny. In Ryan ³⁸, Iacobucci J. said:

A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere.

118The Ryan court also stressed ³⁹ that the court's analysis should stay close to the actual reasons and the court should not consider what its answer would have been and give the tribunal a "margin of error" around that result. Properly applied, the reasonableness standard "gives effect to the legislative intention that a specialized body will have the primary responsibility of deciding the issue according to its own process and for its own reasons".

119In my view, the Director reached reasonable conclusions on the issues before him. He canvassed the factual evidence thoroughly and made findings which were open to him on that evidence. He recognized the differences between the experts and resolved them by resort to first-hand evidence of those who had observed the Child in the D. family setting. He considered the best interests of the Child as his focus at all times. He considered expressly the need for continuity in the care of the Child. His reasons stand up to scrutiny. There is no basis on which this court can interfere.

120In the light of the findings I have made, there is no need to consider the remedies which the applicants sought in the event that they were successful. I will observe only that the proposal for a status review, in effect a custody battle, before this court appears to be contrary to s. 64 of the CFSA. [page703]

121I would dismiss the application for judicial review with costs if demanded. The parties may make brief submissions in writing within 15 days if there is no agreement as to costs.

Appendix A: Duties and Powers of Directors Under the CFSA

122The functions for which a Director may be appointed include:

(a) under s. 10(2) of the CFSA, to review any objections received from an agency providing services to the Ministry to a notice that the Minister intends to alter the terms upon which the agency provides such services;

(b) under s. 17 of the CFSA, in respect of Childrens' Aid Societies, to advise and supervise them; to inspect direct and supervise their operation and records; to exercise their powers in areas where there is no CAS; to inspect, direct and supervise the inspection of places where children in care are placed; to ensure that the societies provide the standard of services and follow the procedures required by the CFSA; to designate places as "places of safety" for the purposes of Child Protection;

(d) under s. 30 of the CFSA, approve the making of a Special Needs Agreement between a CAS and a person unable to provide for the special needs of a child in his custody whereby the Minister will fund such needs, and where appropriate, extend the term of such an Agreement;

(e) under s. 31 of the CFSA, approve the making of a similar agreement to provide for funding the special needs of a child of 16 years or older;

(f) under s. 34(5) of the CFSA, designate a building or buildings as an institution in which residential services can be provided to ten or more children at a time;

(g) under s. 37(1) of the CFSA, authorize persons ("child protection worker") to commence Child Protection proceedings under s. 40;

(h) under s. 61(4) of the CFSA, permit the removal from Ontario of a child in the care of a CAS, if satisfied that extraordinary circumstances justify it; [page704]

(i) under s. 61(6) of the CFSA, authorize the removal of a child from a foster home or other residential placement if it is, in the Director's opinion, in the best interests of the child to do so;

(j) under s. 61(8) of the CFSA, perform a review of a decision under s. 61(6) and recommend whether the child ought to be removed;

(k) under s. 61(9) of the CFSA, direct the removal of a child from a residential placement without a review if there would be, in the opinion of the Director, a substantial risk to the child's health or safety during the time necessary for the review;

(l) under s. 64(6)(f) of the CFSA, a Director shall receive notice of any status hearing respecting Crown ward;

(m) under s. 66(1) of the CFSA, a Director shall annually review the status of every child who is a Crown ward and has not been reviewed in the previous 24 months and the Director may direct the CAS to apply for a status review, or give any other direction that, in the Director's opinion, is in the best interests of the child;

(n) under s. 68 of the CFSA, the complaint review procedure of a CAS shall be approved by a Director; additionally, a complainant who is dissatisfied with the CAS' response may have the matter reviewed by a Director;

(o) under s. 69(1)(d) of the CFSA, a Director is a person who has status to appeal an order for the care of a child under Part III (Child Protection) to this court;

(p) under s. 71(2) of the CFSA, a Director may approve the continuation of care by a CAS of a child who has reached the age of 18 or married;

(q) under s. 77 of the CFSA, the Director has the power to direct, in the best interests of a child in the care of a CAS, that the child be moved to the care of another CAS or be moved from one placement to another, taking into account the length of the existing placement, the views of the foster parents and the views of the child where ascertainable;

(r) under s. 78 of the CFSA, a Director has the power to approve any person to be a 'homemaker' for the purposes of the section, which person may enter premises and care for a child found there; [page705]

(s) under s. 80 of the CFSA, a director is one of the persons authorized to apply to vary, extend or terminate an order that a child is in need of protection;

(t) under s. 86(5) of the CFSA, a Director may order that a child, who cannot be placed in a suitable placement because of the restrictions in s. 86(3) relating to placement in a home of the religious belief of the child, may be placed notwithstanding s. 86(3);

(u) under s. 126 of the CFSA, a Director may approve a locked room as a facility for the secure isolation of children on such terms as the Director determines and may withdraw such approval where the Director is of the opinion that such facility is unnecessary or being used contrary to the regulations, giving reasons for the decision;

(v) under s. 127 of the CFSA,a child under 12 may only be placed in a secure facility where a Director gives permission because of exceptional circumstances;

(w) under s. 128 of the CFSA, a person in charge of a secure facility shall make a report to a Director every three months on the need for the facility and other prescribed matters;

(x) under s. 137(2) of the CFSA, an order for the adoption of a Crown ward shall not be made without the consent of a Director, which shall not be dispensed with by the court (s. 138);

(y) under s. 140 of the CFSA, a Director may require a CAS to make all reasonable efforts to secure the adoption of a child in another society's care;

(z) under s. 141 of the CFSA, no person shall place a child for adoption or send a child out of Ontario to be placed for adoption without first notifying a Director of the proposed placement; when giving such notice, the person shall provide the Director with the adoption home study, prepared by a person who is, in the opinion of the Director, qualified to do so, and the Director shall approve or refuse to approve the placement, subject to any terms and conditions the Director considers appropriate; (s. 142);

(aa) under s. 144, as we have seen, the Director is to review the decision of a CAS as to the placement of a child with A rather than B and confirm or rescind the decision and do anything further that the CAS might do as to the placement; [page706]

(bb) under s. 145 of the CFSA, when the adoptive parents or the CAS seek the removal of a child placed for adoption from the care of the adoptive family, or when a year has passed after an adoption placement without an order for adoption, a Director shall be notified and shall review the status of the child and may, in the best interests of the Child, confirm the placement or do anything that the CAS could do in respect of the placement or further placement, place the child with a CAS; cause the child to be brought to court to determine if the child is in need of protection, place the child elsewhere or return the child to the parent;

(cc) under s. 149 of the CFSA, when an application is made for an adoption order, a Director shall certify to the court whether in his opinion it is in the best interests of the Child to make the order;

(dd) under s. 193 of the CFSA, no person shall operate a childrens' residence, nor, except a CAS, place a child for adoption without a licence issued by a Director who may impose terms on such a licence or any renewal;

(ee) under ss. 195 and 196 of the CFSA, a Director may refuse to issue or renew, or may revoke a licence where, in the Director's opinion the applicant is not competent, or will not carry on the licenced activity in accordance with the Act, or the regulations, subject to an appeal under ss. 197 to 201 to the Child and Family Services Review Board. The Director may apply for an injunction to enforce any such order: s. 205

(ff) under s. 214 of the CFSA, the Lieutenant Governor in Council may make regulations prescribing additional powers and duties of Directors in respect of Part I.

Dissenting Reasons of Molloy J.

1MOLLOY J. (dissenting): -- I agree with many of the conclusions reached by my colleagues. However, I disagree with their determination as to the fundamental fairness of the review process. In my opinion, the process was unfair, the hearing was therefore unfair and this so taints the result that I cannot be confident the ultimate determination was in the best interests of the child. I will deal first with those points upon which I am in agreement, or substantial agreement, with the Reasons of Lane J. and then turn to the areas in which I differ. [page707]

A. Majority Reasons on Charter Issues

2I agree with the Reasons of Lane J. with respect to the Canadian Charter of Rights and Freedoms issues raised. The [I.s], as foster parents, have no s. 7 rights of their own to assert. I have no difficulty with the [I.s] initially raising a concern about the s. 7 rights of the child, given the fact that the interests of the Halton Children's Aid Society ("HCAS") and the child might not coincide. However, the Children's Lawyer has since been appointed to represent the child in these proceedings and has not elected to advance any Charter argument on behalf of the child. The [I.s] do not have status to assert those rights.

B. Majority Reasons on Standard of Review

3I agree that the standard of review to be applied to the decision of the Director in this case is one of reasonableness.

4I do not, however, agree that the breadth of the powers reposed in Directors in various provisions of the Act is a factor to be taken into account in determining the degree of deference to be given to this particular Director. The Director in this case was appointed on an ad hoc basis to conduct only this one hearing. There is no permanent tribunal and no roster of qualified persons who may serve as a Director. There are no minimum qualifications to sit and no screening process for selection. That is not to say that the calibre of persons appointed may not be excellent. However, there is no requirement that they be so. Likewise, there is no requirement of legal training or any experience in the field of child custody or adoption. I would say, therefore, that the level of expertise of this tribunal is on the low end of the scale. The same may or may not be true of Directors who perform other functions under the Act. There was no evidence before us on who carries out those functions or in what c ircumstances.

5Further, issues of child protection and child custody are within the normal area of expertise of judges. Judges are required to make decisions in the best interests of children every day in our courts in a wide variety of situations. The interpretation of child welfare legislation is also part of the normal fare for the courts. The issues involved in this case, being a review of a decision to place a child for adoption with one set of parents as opposed to another, are squarely within the normal expertise of judges. Accordingly, I conclude that the expertise of this tribunal is low relative to that of the court.

6The relatively low level of expertise of the tribunal in respect of the issues raised in the proceeding and the absence of a privative clause are factors supporting a lower level of deference. [page708] However, I agree with the observations of Lane J. at paras. 92-98 with respect to the purpose of the legislation and the nature of the question before this Director. In my view, the nature of the question is the factor which moves the standard of review for this case out of the correctness level and into the reasonableness category. The issues are policy-laden, the decision is highly fact-driven and the subject-matter is such that the ability to see and hear the witnesses is fundamentally important. There is no "right" or "wrong" answer to the question that was before the HCAS, and then before the Director. A correctness standard in this situation would simply be unworkable.

7That said, this court must also be satisfied that the best interests of the child have been protected and this obligation must temper any conclusions as to the "reasonableness" of a particular decision.

C. Majority Reasons on Delay

8I agree with my colleagues that the Director did not lose jurisdiction as a result of the delay. I also agree that some of the delay was unavoidable and, further, that some of the delay was even necessary to ensure that the child's best interests were protected. There may well be situations in which the extent of the delay which occurred here would not render a hearing unfair. There can be no hard and fast rule as to how much time is reasonable to complete this type of hearing, and when the line from reasonable to unacceptable is crossed. However, when (as here) the passage of time itself becomes a determining factor in reaching a particular result, unfairness has occurred. I will return to the issue of delay in this case later in my Reasons as it lies at the heart of my conclusion that the hearing in this case was unfair.

D. Majority Reasons on Procedural Unfairness

9It is unfortunate there is no record of the proceedings before the Director. This has resulted in an abundance of conflicting material before this court as to what happened and precisely what was said at the hearing. It is not possible for this court to resolve those disputed facts. That said, I do not see any procedural unfairness in the role played by Ms. Pallett, senior legal counsel for the HCAS, even placing the evidence of the [I.s] at it highest. I agree with the Reasons of Lane J. in this regard.

10One of the issues of procedural unfairness raised by the [I.s] is that the rules for the hearing, and indeed the central issue to be decided by the Director, seemed to shift as the proceeding progressed. Although there is no record, it would appear that [page709] both the HCAS and the [I.s] agree that the Director initially said his review would focus solely on the factors that went into the HCAS decision of December 23, 2003 not to place the child with the [I.s]: Affidavit of Roy Walsh, local Director of HCAS, para. 9; Affidavit of [A.I.] and [C.I.] para. 11. Specifically, the Director told the parties that his review would not focus on a comparison of the [I.] family with the D. family and that events after December 23, 2003 were not to be part of the review: Affidavit of Roy Walsh, para. 9. The fact that B. and G.D. were not made parties to the proceeding is fully consistent with that position.

11It is also clear that the focus of the review did shift to matters beyond the December 23, 2003 decision. In my view, however, this was inevitable because the stated focus of the review was flawed from the outset. The HCAS decision to place the child with the D. family involved choosing the D.s as better adoptive parents for the child than the [I.s]. How could anybody possibly review the correctness of that decision without considering the comparative merits of the two families? Further, the Director was mandated to consider the best interests of the child. In the final analysis, the decision he had to make was whether it was best for the child to leave him with the D.s or to return him to the [I.s]. A comparison between the two situations had to be made. Further, the process of reaching the right decision on that issue in December 2004 could not possibly ignore events that occurred since December 2003. The interests of a child cannot be determined by freezing a moment in time as if subsequent events h ave no bearing. It is a fluid process.

12It is not entirely clear to me that it was Mrs. [I.]'s questioning of Dr. Cook at the initial hearing date that caused the focus of the inquiry to shift. In my opinion, an inquiry that went beyond what happened in December 2003 was mandated by the delay in the process. However, regardless of how the issue arose, it was important for the Director to consider the child's attachment to the two sets of prospective adoptive parents and he acted properly in adjourning the proceedings in order to obtain expert evidence on the point.

13I also agree that the Director acted correctly in admitting the report of Dr. Seim, notwithstanding its late delivery. The central issue for the Director was, and was required to be, the best interests of the child. It would rarely, if ever, be in the best interests of a child to refuse to admit expert testimony relevant to a central issue in the proceeding on the grounds that it could or should have been delivered earlier.

14I agree that the [I.s] cannot complain of procedural unfairness with respect to the admission of Dr. Seim's report. As noted by Lane J. at para. 57 above"To accept it without an opportunity [page710] for the applicants [the [I.s]] to reflect on it and obtain the advice of Dr. Cook about it would certainly have caused procedural unfairness to the applicants. However, they were offered that opportunity and refused it."

15However, I do not agree that this is the end of the question. The [I.s] do not represent the child. The overriding duty of the Director was to ensure that the process was fair, not only to protect the rights of those who were formal parties to the proceeding, but also to safeguard the best interests of the child. A balanced and fair process, in my view, would have provided an opportunity for a response from Dr. Cook or, alternatively, a comparative (rather than one-sided) analysis from another expert. I will return to this point below.

E. The Role of the Office of the Children's Lawyer before this Court

16By Order of Pitt J. dated December 21, 2004, the Office of the Children's Lawyer ("OCL") was requested to represent the child in this proceeding. Understandably, the OCL did not simply look at the paper record to determine the legal position it would take on behalf of the child. The child is only two and one-half years old, too young to express his own views. However, the OCL conducted interviews of the other parties involved and performed assessments as to what was in the best interests of the child, including observations of the child's interactions with both sets of prospective adoptive parents. The OCL chose not to file a Report with the court as to the results of its investigations. Rather, it simply filed a factum and argued its position based on the evidentiary record before the court.

17I consider it appropriate that the OCL chose this course of action. The Record of the Director was not provided until February 7, 2005. The parties had previously agreed that the deadline for filing evidence with this court would be February 5, 2005. It was potentially still open to the OCL to file its report after that date. However, if it did so, fairness to the other parties would require giving them an opportunity to respond, including the possibility of their retaining experts of their own to rebut the new evidence. This would inevitably lead to further delay in a case that has already been plagued with excessive delay. The OCL correctly reasoned that this court was not in a position, on judicial review, to conduct a full assessment on the best adoptive home for this child and to make a final order in that regard. Rather, if this court were to set aside the decision of the Director, the remedy sought by both the applicants and the [page711] OCL is a new hearing to determine the best placement fo r the child. The further assessments obtained by the OCL would be more appropriately considered at that type of hearing. Accordingly, the OCL, wisely in my view, refrained from muddying the waters by seeking to introduce any further new evidence at this point.

18In my opinion, the OCL is fully entitled to, and indeed, should take into account all of the information it can possibly obtain in determining what position it will take in a court proceeding on behalf of a child. That does not mean that the OCL is obligated to place all of that information before the court, although obviously it cannot refer to evidence that is not before the court in the course of its argument. Thus, the OCL can and should rely on professional expert opinions that the best interests of the child would be met if a certain result were achieved at a hearing. Sometimes, for example, the OCL might come to the conclusion as a pure question of law that an appeal from a particular decision might be successful, but nevertheless decide not to take that position because of advice from other professionals that reversing that decision would not be in the best interests of the child. The opposite result could also be true. But the OCL is not required to disclose to the court all of the background information it has received which informed its decision to take a particular position before the court.

19The OCL is statutorily mandated to act in the best interests of the children it represents. It is axiomatic, therefore, that a position taken by the OCL is one which the OCL believes to be in the best interests of the child. In this case, Ms. Bellinger (who appeared for the OCL on the judicial review) advised that the OCL takes the position the best interests of the child requires a new hearing to determine the best adoptive placement for him, rather than simply supporting the existing decision placing him with the D. family. In her arguments before the court, however, Ms. Bellinger quite properly restricted her argument to the factual record before the court and the relevant case law. There is nothing unusual or improper in the OCL not filing a Report as to its investigations. The OCL has merely satisfied itself as to the position that accords with the child's best interests and restricted its arguments before this court to those which are properly before us, i.e., whether the Director's dec ision should be set aside or upheld.

20The Children's Lawyer is a completely independent arm's-length party with a statutory mandate to protect the best interests of the child. It has no vested interest in the outcome of this matter. The CAS also has a statutory mandate to act in the [page712] child's best interests, but it is no longer completely neutral in this matter as the subject matter of this proceeding is CAS's placement decision and it seeks to uphold that decision. I have no doubt that both the D.s and the [I.s] believe they have the child's best interests at heart, but they both love the child and want to have him as part of their respective families, so they also are not impartial. For this reason, it was particularly important to have the OCL involved in this case to represent the independent interests of the child. The OCL is frequently an invaluable resource to this court, and I find this case no exception. I found the OCL's involvement to be very helpful.

F. The Overall Fairness of the Process and the Conduct of the HCAS

21In considering the overall fairness of the process leading to the Director's decision, my focus is solely on the best interests of the child. Although it was the [I.s] who invoked the s. 144 review process, in a very real sense (and without in any way meaning to denigrate their interest in this matter), this proceeding is not about them at all. Further, like my colleagues, I do not see any procedural unfairness to them sufficient to warrant a new hearing in this matter. However, I have come to a different conclusion in considering whether the process was fair from the perspective of the child.

22Three inter-connecting factors drive me towards that conclusion: the first is the failure of the HCAS to preserve the status quo pending the s. 144 review; the second is the delay. Neither would be fatal without the other. However, the combination of placing this child with a new set of parents during the course of the one-year delay in reaching a determination resulted in unfairness to the child. The third factor is the focus of the Director's decision both on the substantive issue before him and with respect to the report of Dr. Seim. If the Director's decision has immediately followed the placement decision made by HCAS, it might well have been sufficient for him to merely consider whether that decision was a reasonable one in the circumstances. However, with the passage of time, that was no longer the relevant focus. Rather, the issue became what was in the best interests of the child one year later in December 2004, regardless of what might have been reasonable in December 2003. While the Director gave some consideration to this, it was not a fully balanced perspective and the one-sided report of Dr. Seim was given excessive weight. I will deal with each of these points below. [page713]

(i) Failure to preserve the status quo

23In its December 2003 decision, the HCAS chose one set of adoptive parents over another, the D.s rather than the [I.s]. The [I.s] wanted to adopt the child but HCAS refused. In a situation such as this, the legislation does not permit a children's aid society to be the sole arbiter as to the appropriate adoptive placement for the child. Rather, the legislation not only contemplates that adoption decisions by children's aid societies are subject to review, but specifically provides for a regime in which a Director may rescind a decision and substitute his own determination for that of the society: s. 144(1). Apart from the overarching requirement to act in the best interests of the child (which underlies all powers exercised under this legislation), the only guidance provided to the Director under this provision is that he is required to "take into account the importance of continuity in the child's care".

24Continuity of care is a cornerstone of the legislation and well known to all children's aid societies. I understand the concerns of HCAS back in December 2003 about the [I.s'] seeming difficulty in coming to a decision to adopt this child. I accept that the HCAS personnel involved believed, given the ambivalence of the [I.s], that placing this child with the D. family for adoption was in his best interests. However, whatever may be said about the reasonableness of the HCAS conduct up to December 22, 2003, the picture changed dramatically after that point. Once it became clear that the [I.s] objected to giving up the child and challenged the HCAS decision to place him with the D.s, it was, in my view, grossly unfair to the child to remove him pending the review process. The only parents this little boy had ever known were [A.I.] and [C.I.]. He had lived with them and been cared for by them from the moment he was born up until the HCAS removed him from their home on December 23, 2003, a period of nearly

14 months. This child was not in any danger. He was secure in his foster home placement with the [I.s], and indeed was acknowledged to be thriving there. Preserving the status quo in these kinds of situations is always the norm, and is to be preferred unless there is good reason to deviate from it. Leaving this child with the [I.s] pending the review would have recognized the importance of continuity of care, would have resulted in the least upheaval and potential harm for the child and would therefore have been in his best interests.

25It is the removal of the child from the foster home and his placement with the D.s while the review was ongoing which makes the delay in this case so problematic. Had the child [page714] remained with the [I.s] pending the review, the focus of the review would have been essentially the same question that was before the HCAS, i.e., whether the failure of the [I.s] to unequivocally commit to adopting the child at an earlier stage was a sufficient basis to exclude them as adoptive parents, bearing in mind his attachment to them since birth. Once the child was removed from the foster home and placed with the D.s, the original focus might still have been the same, but for the lapse of time. However, in the full year that elapsed from when the child was removed until a determination was made, the circumstances had fundamentally changed. For one thing, it would appear to be clear that whatever reluctance the [I.s] might have expressed in the early stages, they were by that time unequivocally commi tted to adopting this child. However, also by that time, this child had spent nearly half his life with the D.s. It was necessary for the Director to take into account the impact on the child of disrupting that situation and potentially causing even more harm to the child. But for the extent of the delay that occurred, this would not have been an issue. Even more importantly, but for the decision by HCAS to disturb the status quo and place the child with the D.s, this would not have been an issue. Thus, the combined impact of removing the child from the foster home and the extended delay in completing the review process fundamentally changed the issue before the Director.

26Further, the longer the child spent with the D.s, the greater the likelihood that the outcome of the review would turn on his attachment to them and the potential harmful effects of further disruption. Thus, an increased delay would have the effect of tipping the likely outcome towards upholding the HCAS decision. In this context, any delay caused by the HCAS or other government authorities is of particular concern from a fairness perspective. Regrettably, they were the source of significant delay.

(ii) Delay

27It was obvious by at least December 22, 2003 that the [I.s] strongly objected to the HCAS decision to place this child with the D.s. They asked the HCAS to review the decision and requested that an independent assessment be obtained as to the best adoptive placement for the child. They also protested the removal of the child from their care pending this review. Apart from some internal discussions between HCAS personnel and one meeting with the [I.s] on January 31, nothing was done by HCAS for over a month. Finally, at the end of January, staff placed the issue before the HCAS Board of Directors. HCAS then [page715] advised Mr. and Mrs. [I.] by letter dated January 29, 2004 that upon considering the relevant legislation, the Board of Directors had concluded it had no jurisdiction for a review, but that the [I.s] could request a review under s. 144 of the Act by writing to the Ministry of Children's Services. A contact person and address were provided. The delay to this point was five weeks. As agai nst the [I.s], it might be argued that it was open to them to obtain legal advice as to the review procedure and the HCAS is therefore not responsible for the delay. However, from the perspective of the child, this rationale holds no sway. It was clearly in the best interests of the child that any review be conducted expeditiously. The HCAS was obliged to act in the best interests of the child and five weeks of delay before they advised the [I.s] of the review procedure was not acceptable from the point of view of the child. Again, this unfairness to the child is compounded by the fact that the status quo was not being preserved in the meantime.

28By letter dated February 4, 2004, Mr. and Mrs. [I.] promptly requested the Ministry to conduct a review under s. 144 of the Act. They also asked the HCAS, pending the review, to arrange a "shared access situation" of regular visits with the child both in the community and in their own home so that the relationship between them could be maintained. Mrs. [I.] pointed out to the [HCAS] Regional Director the importance of retaining a strong ongoing relationship between the child and the [I.] family (including the other children in their family) in order to minimize any damaging effects of uprooting the child from the D. home if the Director's decision was to return him to the [I.s]. In my view, the wisdom of this suggestion is self-evident. However, the HCAS did not accede to it, providing instead for only very limited access, with the [I.s] seeing the child only about once every ten days for brief half-hour visits. It is hard to fathom the reasoning behind that decision. It would only serve to reduce the bond between the child and the [I.s]. This would either reduce the likelihood of their being selected as the best adoptive family for this child or, alternatively, if the they were successful in the review under s. 144, the disruption to the child would be greater because they would not have maintained as close a connection with him during the course of the review. Again, this determination by the HCAS would have the effect of tilting the balance in favour of the Director upholding their original decision to place the child with the D.s.

29Although the request for a review was made on February 3, 2004, the appointment of the Director to conduct the review was not made until April 16, 2004. This was a delay of nearly [page716] 2[cents] months. The Ministry delegate, Mr. Filipowich, who was responsible for recommending a particular person for appointment as the Director to conduct the review, considered only one candidate, Mr. Giesbrecht, and he was ultimately appointed. The delay in making the appointment is inexplicable. Mr. Filipowich apparently made only one phone call, which took approximately half an hour. When Mr. Giesbrecht was contacted, he advised Mr. Filipowich that he would be unable to start the review for several months. Mr. Filipowich made no attempt to find another suitable person who could start the review earlier. The [I.s] were not advised of the appointment of the Director until the middle of May 2004. The first meeting between the parties and Director Giesbrecht was on May 28, 2004. This was just over five months since the child was first removed from the foster home, five months from when the [I.s] asked the HCAS for an independent review of the decision and four months since they formally requested the appointment of a review under s. 144 of the Act. That amount of delay in a matter of this nature is, quite simply, indefensible. Further, the fact that the child was removed from the foster home with only minimal access to the [I.s] compounds the problem.

30The hearing commenced on June 28 and continued on June 29. This was a further one-month delay from the initial organizational meeting, but that is probably reasonable in order to ensure the availability of all parties and to allow time for preparation. There was then a further adjournment until July 22 to obtain an independent expert assessment from Dr. Cook. It was perfectly appropriate, and indeed advisable, for the Director to seek this type of assessment and clearly in the best interests of the child to do so. However, I do note that Mrs. [I.] had asked HCAS to obtain such an assessment as early as January 2004 but they failed to do so. Had they taken that reasonable step, this further adjournment would likely not have been necessary. Further, the delay occasioned in obtaining the report of Dr. Cook was an additional one month longer than it needed to be due to the fact that the Director did not contact Dr. Cook to request that he undertake the assessment until July 22, the very day to which the he aring had been adjourned. This aspect of the delay is systemic and further contributes to the unfairness of the process.

31Dr. Cook's report was not delivered until October 18, 2004. That delay was out of the control of all of the parties. The hearing then reconvened on November 17, 2004, a reasonable delay to accommodate availability of the parties and time for them to prepare. The Director delivered his decision on December 9, 2004. By then, almost a full year had passed from the time the child was removed from his foster home with the [I.s]. [page717]

(iii) Focus of the review and the Dr. Seim report

32At the preliminary meeting on May 28, 2004, the Director advised that his review would focus entirely on the HCAS decision made in December 2003, that he would not consider events subsequent to that date, and that he would not compare the relative merits of the two sets of potential adoptive parents. In my opinion, this approach was inappropriate and not directed towards the best interests of the child. There are few, if any, decisions more fundamentally important to a child than who his parents will be. It was in the best interest of this child that he be placed with the adoptive parents best able to meet his particular needs. It is of no consequence to this child whether the HCAS decision in December 2003 was reasonable in light of the circumstances that were known at that time. What is crucial to this child is that his current situation be taken into account when the ultimate placement decision is made, along with any facts relevant to choosing the most appropriate adoptive parents, regardless of when those facts became known. To choose an extreme example, suppose a children's aid society makes a perfectly reasonable decision to place a child with Family A instead of Family B based on the facts that existed at the time, but during a s. 144 review requested by Family B it is discovered that Family A had a long history of child abuse. Obviously, the history of abuse would be a relevant, indeed probably determinative, factor for the Director to take into account in deciding whether placement with Family A is in the best interests of the child. That is because the overall objective of the review is to ensure the child is placed in the best available home regardless of the merits of the initial children's aid society decision. The same principle applies in this case. In order to protect the best interests of the child, it was necessary for the Director to take into account all of the current circumstances, including the extent of the child's attachment to the D.s since being placed with them in December 20 wh03 and his ongoing relationship with the [I.s].

33It was therefore appropriate, as I have indicated above, for the Director to have adjourned the hearing in order to obtain an assessment report from Dr. Cook. One of the issues Dr. Cook was to consider was the degree of attachment between this child and the D.s, which was important information for the Director to have. Dr. Cook observed the child with both the [I.s] and the D.s in the course of his assessment. Again, this was appropriate. At the end of this review, the child would be placed for adoption with one of these two families. It was important to consider his degree of attachment and quality of interaction [page718] with both sets of parents. It was clear by this point that the Director was indeed looking at events and information subsequent to December 2003 and that he was, at least to some extent, engaged in a comparison between the two families. This was not only permissible, but mandatory, in order to fully consider the child's best interests. I therefore do not consider the shift in focu s to be unfair to the child. It is arguably unfair to the D.s since they would be directly affected by any decision made at the end of the review and yet, for reasons I cannot fathom, were not made parties to the proceeding. However, since the Director's decision was to place the child with them for adoption, they were not adversely affected by the unfairness. It may also be seen to be unfair to the [I.s] because the focus of the hearing shifted from what they had initially been led to believe. However, once the report of Dr. Cook was commissioned, the shift in focus was obvious and the [I.s] had adequate opportunity to prepare for the expanded issues over the course of the adjournment. Accordingly, from an overall fairness point of view, I have no difficulty with this shift in focus.

34It would appear that at the June 28, 2004 hearing date, the HCAS objected to the appointment of Dr. Cook to perform the assessment because he already was behind in delivery of assessment reports requested by the HCAS in other cases and there was therefore a concern that he would not be able to complete this report in a timely way. It would also appear that HCAS indicated to the Director as early as July 6, 2004 that it intended to call rebuttal evidence to refute negative comments about the D.s that had been raised by the [I.s] at the hearing. One of the operating rules from the outset of the hearing was that the process would be transparent with all parties making full production and disclosure in a timely way. In light of this, it is difficult to understand the rationale behind the HCAS delivering its rebuttal evidence on November 16, one day before the hearing was to resume.

35The rebuttal evidence included affidavits from HCAS staff who testified as to the good transition the child had made from the foster home to the D.s home and the good interaction between the D.s and the child since that time. Although some of their evidence is in response to Dr. Cook's report, not all of it is, and it is difficult to see why it could not have been provided earlier, even if it required updating once Dr. Cook's report was received. Another piece of rebuttal evidence filed by HCAS was a report from a therapist, Diane Randall, who observed the D.s with the child on July 21, 2004 and determined that the D.s did not require any parenting counseling. Her report is dated July 22, 2004, but was not produced to the other parties until November 16, 2004, which is troubling. Further, her report was not provided to Dr. Cook [page719] who was in the course of conducting his assessment at that time, although it was provided to Dr. Seim who was later retained by HCAS to conduct a further expert asse ssment of the D.s.

36It is even more difficult to understand why HCAS did not retain Dr. Seim to prepare a report until October 6, 2004, three months after its stated intention to provide rebuttal evidence. Dr. Seim was retained before Dr. Cook had delivered his report, and so was not retained merely as a response to what Dr. Cook had to say. Another troubling aspect is the nature of Dr. Seim's retainer. His sole focus was an assessment of the attachment between the child and the D.s. He did not meet the [I.s] and did not observe any interactions between them and the child. All of his interviews and observations of the child were in the D. family home, where he had resided by then for ten months. The objective of a children's aid society should be to act solely in the best interests of the child, and should not be to support its own initial decision (regardless of its merits). It is therefore surprising to me that the only evidence it sought was with respect to the relationship between the child and the D.s, with no consid eration of how that compared to the relationship between the child and the [I.s].

37In response to the [I.s'] objection about the late delivery of the report of Dr. Seim and other rebuttal evidence, the Director offered a further adjournment of the hearing. The [I.s], recognizing that their chances of ever adopting this child became slimmer the longer he was away from them, elected to proceed. Initially on this judicial review, the applicants took the position that the late admission of Dr. Seim's constituted procedural unfairness and it ought to have been excluded. During the course of argument, however, counsel conceded that the report could not be excluded is it was relevant to the best interests of the child.

38As far as procedural fairness to the [I.s] is concerned, the Director correctly offered them two options: proceed with the hearing based on all of the evidence, including that which was delivered without fair notice; or, adjourn the hearing to permit time to consider and respond to the new material. However, those two options are not a full answer to protect the best interests of the child. This child is entitled to a balanced assessment as to which of these two sets of parents would be best for him. Dr. Seim's report was deliberately focused only on the D.s. Dr. Seim was also highly critical of Dr. Cook's report, both with respect to the methodology he used and his conclusions, and he suggested that Dr. Cook was biased towards the [I.s]. Dr. Cook was not retained by the [I.s]. He was originally retained by the HCAS to do an assessment when the child was five months old, in the context of the child protection proceedings involving the child's birth [page720] parents. He formed a favourable impression of the foster parents at that time, which is hardly surprising as HCAS itself recognized the [I.s] were outstanding foster parents. Mrs. [I.] called him as a witness at the hearing because of this background and because of his expertise. It was the Director who retained Dr. Cook to carry out the 2004 assessment, not on behalf of any of the parties, but rather to assist the Director in reaching his decision. Further, the observations were not those of Dr. Cook alone. All observations were made together with a psychologist, Dr. Parker, who agreed with Dr. Cook's conclusions.

39The Director was not obliged to accept Dr. Cook's recommendations. However, in fairness to the child and recognizing the possibility that the best placement might be with the [I.] family, the Director, at the very least, ought to have obtained a response from Dr. Cook to this new information and criticism of his report. Further, the Director ought to have at least considered having Dr. Seim, or perhaps another more independent assessor, conduct observations of the child's interactions with both sets of parents. In this situation it was unfair to the child for the Director to have placed the weight he did on the purely one-sided report of Dr. Seim.

(iv) Conclusion on fairness of the process

40From the perspective of the child, this was not a fair process. The best interests of the child required an independent, balanced review of the placement decision. The conduct of the HCAS, along with the unacceptable delay in completing the hearing, resulted in a review that was unfairly tilted in favour of leaving the child with the D. family.

41First, HCAS failed to preserve the status quo pending the hearing. As a result, the child was removed from the foster home and placed with the prospective adoptive parents. Therefore, if the child was to be returned to the [I.s] there would have to be a further disruption in the continuity of care. The HCAS had to have been aware this would be a crucial factor in any reviewing body's determination as to whether it was in the child's best interests to return him to the [I.s] for adoption. Second, the HCAS contributed to the excessive delay in getting this matter to a hearing, although the major source of the delay was with the Ministry. Third, the HCAS controlled how much contact there would be between the [I.s] and this child pending the determination of the review. They permitted access only about once every ten days for half an hour to 45 minutes at a time, in public places and with the D.s present. That is hardly a situation conducive to [page721] maintaining an attachment between this child and t he [I.s]. Fourth, in the face of an independent assessment ordered by the Director evaluating the relationships between the child and both sets of prospective adoptive parents, the HCAS delayed for three months before retaining its own expert. It then obtained information only with respect to the attachment between the D.s and the child, being apparently uninterested in how the child interacted with the [I.s]. Finally, the HCAS filed its material at the eleventh hour, literally the day before the hearing was to commence. It then relied on this unrebutted material to argue that the child had formed a deep attachment with the D.s over the course of 11 months and that to disrupt him now would be damaging to him. This, needless to say, was a result fuelled by HCAS's own conduct.

42This process under s. 144 should have been an opportunity to obtain a neutral assessment, a balanced consideration of the relative merits on each side of the scale with respect to these two sets of prospective parents. It should have been conducted promptly and with the least possible disruption to the child. Instead of a prompt hearing, the process took nearly a full year, practically a lifetime for a child who was only 14 months old when it commenced. Instead of minimal disruption, the process involved the maximum disruption to the child imaginable. Rather than leaving the child where he had lived quite happily for 14 months, the child was placed in another home with a different set of parents he has now come to call "mama" and "dada", and with different siblings and different grandparents. During that time, he has seen the people who raised him from birth only sporadically and only in artificial situations in the company of others. Instead of a balanced consideration of the two sides of the scale, o ne of the parties (the one with all the power), placed its hand firmly on the scale tilting the balance towards the side that would uphold the wisdom of its own decision. Whatever may be said about this process, it cannot be said to be "fair".

G. Reasonableness of the Director's Decision

43If the question before the Director was solely a review of the decision made by the HCAS, and if that review had been conducted in a timely way or the status quo maintained in the interim, then I agree with my colleagues' determination that there was evidence before the Director upon which he could reasonably conclude that the decision to place the child with the D.s was, at the time it was made, in the best interests of the child. However, as I stated above, because of the extensive delay and [page722] the manner in which the process unfolded, that was no longer the sole issue before the Director. Rather, the issue to be decided by the Director (almost a full year after the fact) was whether, in light of all of the information he now knew, the child's best interests would best be served by leaving him with the D.s or by placing him for adoption with the [I.s].

44Notwithstanding the unfairness of the process up to the time of the Director's decision, it does not necessarily follow that the Director's decision is itself unreasonable or not in the best interests of the child. However, in my opinion, the reasoning of the Director is adversely affected by the defects in the process up until then, such that I cannot be confident the same result would have been reached if the interests of the child had been properly taken into account.

45A major underlying problem is that although the focus of the Director's inquiry had quite properly shifted from looking solely at the situation on December 23, 2003, he failed to consistently look at all the issues from the perspective of the child's current best interests. It was clearly relevant to take into account the intervening period since December 2003, during which time the child had bonded with the D.s and formed an attachment to them. However, what is important at this point is the entire current situation of the child. Unfortunately, although the Director gave considerable (indeed probably determinative) weight to the current situation with the D. family, he ignored the current situation with the [I.] family. In particular, regardless of whether the HCAS was reasonable to be concerned in December 2003 about the firmness of the [I.s'] commitment to adoption, it was surely clear by December 2004 when the hearing concluded that they cared very deeply about this child and desperately wanted to adopt him. However, in his Reasons the Director did not consider at all the current level of commitment by the [I.s], but rather focused exclusively on their vacillation in the few months leading up to December 2003.

46From the perspective of the child, it does not matter that the HCAS failed to perceive the depth of the [I.s'] commitment in December 2003, nor does it matter that this was a reasonable concern at the time. What matters to the child now is whether the [I.s] love him and are firmly committed to adopting him at this point in time. Surely, given all the [I.s] had since gone through over the preceding year, the answer to this question in December 2004 must be in the affirmative, whatever might have been the situation in November and early December 2003. I recognize that this determination is now made with the benefit of hindsight. However, the child is entitled to the benefit of [page723] hindsight if it turns out that the [I.] family would be the best adoptive placement for him. If this hearing was only about the [I.s] and whether they had been fairly treated I would have less concern. But that is quite simply not the determinative issue any more. Moreover, the vacillation by the [I.s] in 2003 must be s een in context. Less than a year before that, they had taken in a profoundly disabled baby as a foster child. They nursed that child through a difficult time, and she ultimately died in hospital in the arms of Mrs. [I.]. Further, they also had a 16-year-old autistic boy as a foster child, having taken him in after his adoptive family found him impossible to handle. Sadly, this foster placement with the [I.s] also did not work out and this troubled teenage foster child was returned to the care of the HCAS in November 2003. Family situations are fluid. What can fairly be said to be ambivalence by the [I.s] towards adopting this child in the months leading up to December 2003, must be seen in the context of the difficult situation they were facing with other foster children, which had resolved by the middle of December.

47Another difficulty with the Director's decision is that he specifically refrained from making any findings with respect to the relative merits of the two sets of families. He found that they would both make good parents for the child, and that may well be the case. However, he did not fairly consider the real issue before him, which is the best placement for the child. There were two driving forces underlying his final determination. The first was the ambivalence of the [I.s] in the fall of 2003, which in my view is irrelevant. The second was the child's current strong and secure attachment to the D.s and the danger of emotional harm to him if that attachment is disrupted at this stage. The difficulty with that finding is that it flies in the face of the report by Dr. Cook and relies entirely upon the rebuttal evidence filed by the HCAS just one day before the hearing resumed. The admission of this evidence without any opportunity for meaningful comment from Dr. Cook and/or the [I.s] is problematic. Th is evidence considered only the attachment to the D.s without regard to the relationship between the child and the [I.s], which Dr. Cook (the only one who assessed it) found to be even stronger than the attachment to the D.s.

48Both the Office of the Children's Lawyer and [I.s] urge this court to order a new hearing on the issue of whether this child should be placed for adoption with the D.s or with the [I.s]. Against that position, the respondents make a compelling point that all the parties, including the child, need finality and that the appropriate remedy for delay cannot be more delay. I have [page724] enormous sympathy for the anguish being experienced by both families. I also recognize that a further hearing would prolong that anguish and might not produce a different result. However, I cannot say that the same result would necessarily follow if a fair process was followed and the only issue considered was the best placement for this child at this point in time. All parties agree that further disruption is not in the child's best interests and that the status quo must be preserved during the time it takes to get through another hearing. It may be the case that by the time another hearing is convened and concluded, w ith the additional period of time the child will have been living with the D.s, the child's attachment to the D.s will be too well settled to disrupt. However, that is not a determination I am able to make on the state of the current record. In my view, a new hearing is required to determine the best interests of this child. The observations of Dr. Cook and Dr. Parker as to the child's strong attachment to the [I.s] many months after his removal from their home and with only minimal contact in the interim are compelling. Even the assessors were surprised at the degree of this attachment in the circumstances and it bespeaks a strong bond that should fairly be explored before it is discounted. Further, I find it persuasive that the OCL, the only truly independent party before the court, supports a new hearing as being in the best interests of the child. Accordingly, I would have ordered a new hearing. In light of the opposite conclusion reached by my colleagues, it is not necessary for me to determine whether t hat hearing would appropriately proceed before a judge of this court exercising parens patriae jurisdiction or before a different Director appointed pursuant to s. 144 of the Act. That issue is better left to a case in which it needs to be decided.

Application dismissed.

Notes

Footnotes

Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner) (2003), 2003 72347 (ON SCDC), 66 O.R. (3d) 692, [2003] O.J. No. 3522 (Div. Ct.).
The Child and Family Services Act, s. 140(1)(a).
Affidavit of the Applicants, sworn December 10, 2004, Exhibit 8, Consolidated Record of the Applicants, pp. 132-33.
Director's Record, vol. 1, p. 176, e-mail from M. McCallum to L. Barker dated October 14, 2003.
Director's Record, vol. 1, p. 79, Minutes of Adoption Placement Meeting, November 19, 2003.
Director's Record, vol. 1, Case update January 9, 2004, p. 82.
Affidavit of the Applicants sworn on December 10, 2004, Exhibit 8, pp. 7 and 11, Consolidated Record of the Applicants, Tab F.
Record of Proceedings, vol. 1, pp. 184-91.
Affidavit of the D.s sworn February 7, 2005, paras. 9 and 10.
Record of Proceedings, vol. 1, p. 75; "Case Summary of Adoption Plan".
Affidavit of the Applicants sworn December 10, 2004, Exhibit 8, pp. 12, 13, Consolidated Record of the Applicants.
Ibid, p. 13.
Record of Proceedings, vol. 1, p. 76; Case Summary.
Ibid, p. 77.
Applicants' Consolidated Record, Tab 8, pp. 141-42.
Joint affidavit of the D.s, February 7, 2005, Respondents' Consolidated Record, tab 5, paras. 39 to 41.
Joint affidavit of the D.s, February 7, 2005, Respondents' Consolidated Record, tab 5, para. 46.
Director's Record, vol. 2, Tab 10, Report of the Director, pp. 1-26 (quote from p. 20).
Ibid, pp. 23-25.
L. (R.) v. Children's Aid Society of Niagara Region, 2002 41858 (ON CA), [2002] O.J. No. 4793, 2002 CarswellOnt 4262 (C.A.), para. 46.
This concession was clearly correct. See: Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), 1994 83 (SCC), [1994] 2 S.C.R. 165, [1994] S.C.J. No. 37, 1994 CarswellOnt 376, at para. 20.
Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39.
"Generally applicants must establish that the delay has caused actual prejudice to their ability to make full answer and defence to establish a breach of the duty of fairness ...": Brown and Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback, 1998), p. 9-84.
New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47.
Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, [2004] S.C.J. No. 6, at para. 3.
Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982, [2004] S.C.J. No. 46.
In fairness to Director Giesbrecht, his qualifications as a lawyer, adoption licencee and experienced reviewer are much better than alleged: see J. (K.) v. Catholic Children's Aid Society of Toronto, 2003 2142 (ON SCDC), [2003] O.J. No. 5058, 49 R.F.L. (5th) 342 (Div. Ct.).
See the discussion of this point in Jones and de Villars: Principles of Administrative Law, 4th ed. (Toronto: Thomson-Carswell, 2004), pp. 502-8.
Per McLachlin C.J.C. in Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, [2003] S.C.J. No. 18, at para. 31.
"Developments in Administrative Law: The 2002-2003 Term" in (2003) 22 S.C.L.R. (2d) 21, at pp. 35-38.
Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982, at para. 32.
They are listed in Appendix A. Some of them are of a nature which may well be assigned to permanent employees, whether of CAS or of the Ministry, but we have no detailed evidence of the administrative arrangements beyond those that applied to Director Giesbrecht.
Supra, note [27].
See: Gordon v. Gordon, 1980 3616 (ON CA), [1980] O.J. No. 1469, 23 R.F.L. (2d) 266 (C.A.), at para. 11: "A custody case where the best interests of the child is the only issue, is not the same as ordinary litigation and requires, in our view, that the person conducting the hearing take a more active role than he would ordinarily take in the conduct of a trial". The appeal was from a decision of a Family Law Commissioner awarding custody of the child, a situation analogous to the present.
Beson v. Newfoundland (Director of Child Welfare), 1982 32 (SCC), [1982] 2 S.C.R. 716, 142 D.L.R. (3d) 20.
Children's Aid Society of Metropolitan Toronto v. Dizio (1990), 1990 6917 (ON SC), 75 O.R. (2d) 92, [1990] O.J. No. 1335 (Div. Ct.)
Re Boone and Catholic CAS of Toronto, unreported, December 20, 2004, Doc. 664/04 (Ont. Div. Ct.)
Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, at para. 55.
Ibid. at paras. 48-50.

Reasons of Lane J.

Background

The Selection of the D.s as Adoptive Parents and the Reactions of the [I.s]

The Adoption Process Begins

The [I.s] Object

The HCAS Considers the Issue

The Child is Placed with the D.s

The Review

The Issues: 1. Delay

The Issues: 2. Procedural Unfairness

The Issues: 3. Charter Issues

The Issues: 4. Standard of Review of the Director's Report

The Issues: 5. Is the Director's Report Reasonable?

Selection

Continuity of Care and Attachment

Appendix A: Duties and Powers of Directors Under the CFSA

Dissenting Reasons of Molloy J.

A. Majority Reasons on Charter Issues

B. Majority Reasons on Standard of Review

C. Majority Reasons on Delay

D. Majority Reasons on Procedural Unfairness

E. The Role of the Office of the Children's Lawyer before this Court

F. The Overall Fairness of the Process and the Conduct of the HCAS

(i) Failure to preserve the status quo

(ii) Delay

(iii) Focus of the review and the Dr. Seim report

(iv) Conclusion on fairness of the process

G. Reasonableness of the Director's Decision

Footnotes

Reasons of Lane J.

Background

The Selection of the D.s as Adoptive Parents and the Reactions of the [I.s]

The Adoption Process Begins

The [I.s] Object

The HCAS Considers the Issue

The Child is Placed with the D.s

The Review

The Issues: 1. Delay

The Issues: 2. Procedural Unfairness

The Issues: 3. Charter Issues

The Issues: 4. Standard of Review of the Director's Report

The Issues: 5. Is the Director's Report Reasonable?

Selection

Continuity of Care and Attachment

Appendix A: Duties and Powers of Directors Under the CFSA

Dissenting Reasons of Molloy J.

A. Majority Reasons on Charter Issues

B. Majority Reasons on Standard of Review

C. Majority Reasons on Delay

D. Majority Reasons on Procedural Unfairness

E. The Role of the Office of the Children's Lawyer before this Court

F. The Overall Fairness of the Process and the Conduct of the HCAS

(i) Failure to preserve the status quo

(ii) Delay

(iii) Focus of the review and the Dr. Seim report

(iv) Conclusion on fairness of the process

G. Reasonableness of the Director's Decision

Footnotes

Cited By (1 case)

Stamatis v. Children’s Aid Society of Toronto, 2017 ONSC 7056

Cited By (1 case)

Stamatis v. Children’s Aid Society of Toronto, 2017 ONSC 7056