Children's Aid Society of Dufferin County v. S.A., 2007 CanLII 25654 (ON SCDC)

COURT FILE NO.: DC-07-00000041-0000

DATE: 20070706

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THE CHILDREN’S AID SOCIETY OF DUFFERIN COUNTY v. S.A. AND G.A.

BEFORE: SNOWIE J.

COUNSEL: Marvin Kurz, for the Applicant

Jennifer Scott, for the Child and Family Service Board

Lorne Glass, for the Office of the Children’s Lawyer

G.A. and S.A. – Foster Parents, Self-Represented

E N D O R S E M E N T

1This is an application by the Children’s Aid Society of Dufferin Region (“the Society”) for a prohibition or stay of a hearing before the Child & Family Services Board (“the Board”) in the above named matter.

2The Board has decided to review a decision of the Society to remove a 16 year old Crown Ward (“T.”) from the home of his foster parents, S.A. and G.A. (“the foster parents”). Both foster parents are Special Education Teachers.

3T. has lived with his foster parents since 1997. T. is a special needs child. He has developmental and special needs including Asperger’s Syndrome, anger and aggression management problems and sexual problems.

4The relevant sections of the Child and Family Services Act are as follows:

61(6)

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

(7)

If a child is a Crown ward and has lived continuously with a foster parent for two years and a society proposes to remove the child from the foster parent under subsection (6), the society shall,

(a) give the foster parent at least 10 days notice in writing of the proposed removal and of the foster parent’s right to apply for a review under subsection (7.1). (emphasis added)

(7.1)

A foster parent who receives a notice under clause (7)(a) may, within 10 days after receiving the notice, apply to the Board in accordance with the regulations for a review of the proposed removal.

(8)

Upon receipt of an application by a foster parent for a review of a proposed removal, the Board shall hold a hearing under this section.

(8.6)

The Board shall, in accordance with its determination of which action is in the best interests of the child, confirm the proposal to remove the child or direct the society not to carry out the proposed removal, and shall give written reasons for its decision.

(8.7)

Subject to subsection (9), the society shall not carry out the proposed removal of the child unless,

(a) the time for applying for a review of the proposed removal under subsection (7.1) has expired and an application is not made; or

(b) if an application for review of the proposed removal is made under subsection (7.1), the Board has confirmed the proposed removal under subsection (8.6)

(9)

A society may remove the child from the foster home before the expiry of the time for applying for a review under subsection (7.1) or at any time after the application for a review is made if, in the opinion of a local director, there would be a risk that the child is likely to suffer harm during the time necessary for a review by the Board.

5The foster parents were not given the 10 days written notice as required by section 61.7(a) of the Child and Family Services Act as the Society judged that the A. were not foster parents to T. for a continuous period of more than two years. I disagree. A. have been foster parents to T. for a continuous period of almost 10 years. T. is a loved member of the A. family. This is the only real home T. has ever known.

6T. has been a Crown Ward with access to his natural mother since 1996. T. was placed into the care of the A.’ foster home in 1997 and has resided with them to date. There was a period of time from August 2004 to August 2005 where T. resided temporarily at L., for the purpose of treatment. L. is a residential school and treatment facility. While he was receiving treatment T.’s foster home remained open for his return. His foster parents, Mr. and Mrs. S.A. participated in T.s Plan of Care, as well as his regular medication reviews with Dr. John Graham. T. visited his foster parents on weekends, during the week, on holidays including March Break, Christmas and summer holidays as well as statutory holidays. T. called home regularly, sometimes twice a day or more. Mr. and Mrs. S.A. attended monthly review meetings and attended special events at the L[…] School such as sports events, assemblies and fund raising events. Such a temporary treatment placement in all the circumstances of this case, did not start the clock running anew for the purposes of s. 61.7(a).

7The 10 day notice period referred to in s. 61.7(a) only begins running after notice in writing has been given to the foster parents by the Society. In this case, not only was such notice not given by the Society, but the foster parents were advised by the Society that they had no right to apply for a review under 61.7 (a) as they had not cared for T. for a continuous period of two years. This advice was wrong and misled Mr. and Mrs. S.A..

8I find this Judicial Review to be premature. A Judicial Review if sought, should take place after the Board’s decision on the merits, and based upon a full evidentiary record. There is nothing for this Court to review at this time. No hearing has been heard yet. The Child and Family Services Board is in the best position and was created to weigh the relevant evidence and determine the issue in question. The matter shall proceed to the Child and Family Services Board forthwith.

9This application by the Society is dismissed as being premature.

10T. shall continue to reside with Mr. and Mrs. S.A. as foster parents for the Society pending the outcome of the Board’s Hearing. This order is an exercise of this court’s parens patriae jurisdiction. It is clear that maintaining a child in his/her foster home was the intention of the Child and Family Services Act pending the decision of the Board about the appropriateness of a move and that had the proper notice and advice been given to Mr. and Mrs. S.A., by the Society pursuant to s. 61.7(a) of the Child and Family Services Act T. would not have been removed until the final outcome of that Tribunal’s hearing. The Society is bound to follow the legislation.

Costs

11If the parties cannot resolve the issue of costs between themselves by July 15, 2007, the parties shall have until July 30, 2007, to submit their written arguments to me on costs.