COURT FILE NO.: 07-CV-38657

DATE: 2007/08/28

ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTIO 45(8) OF THE CHILD AND FAMILY SERVICES ACT

B E T W E E N:

LENNOX AND ADDINGTON FAMILY AND CHILDREN’S SERVICES

Robert C. Morrow, for the Applicant

Applicant

• and -

W. E. and L. E. and THE CHILD AND FAMILY SERVICES REVIEW BOARD

W. E. and L. E., self-represented and Jennifer Scott, for The Child and Family Services Review Board

Respondents

HEARD: July 18, 2007

REASONS FOR DECISION

R. Smith J.

Overview

1The Lennox and Addington Family and Children’s Services (the “Services” or “Society”) have made an application for judicial review to set aside the decision of the Child and Family Services Review Board (the “Board”) dated June 13, 2007. The Board overturned the March 8, 2007 decision of the Director of Services, who had decided to remove N., a 2-year-old child, from the care of the prospective adoptive parents, W. and L. E.

2N. was removed by the Services because it received medical evidence that on or about January 5, 2007, B., N.’s younger brother, was shaken when he was approximately 4 months old. The uncontradicted medical evidence was that B. had suffered from Shaken Baby Syndrome. The prospective adoptive parents, L. and W. E., were the sole caregivers for B. at the relevant time when his injuries were sustained. A criminal investigation is not yet completed.

3The Court must decide whether the Board’s decision to overturn the Director of Services’ decision to remove N. from the care of the L. and W. E. and to stop his adoption by the W. and L. E., was unreasonable in the circumstances.

Background Facts

4N. E. is a crown ward and was born prematurely on […], 2005. He is now just over 2 years of age. N. requires a high level of care and will have a tracheotomy until he is 3 years old.

5N. was placed in the care of L. and W. E. on […], 2005 at 5 months of age. N. became a crown ward without access and became available for adoption on April 18, 2006.

6N.’s placement with the L. and W. E. was registered as an adoptive placement with the Ministry on June 21, 2006 and the adoption was to be finalized on January 8, 2007.

7There has never been any allegation or observation of any injury or mistreatment to N. while he has been in the care of L. and W. E. Severe brain injuries were suffered by his younger brother B. while in the care of L. and W. E.

8N.’s adoption was not finalized due to serious injuries suffered by N.’s 4-month-old brother B., while he was in the care of L. and W. E. The medical evidence is that B. was shaken and suffered Shaken Baby Syndrome injuries.

9As a result, both N. and B. were removed from L. and W. E.s’ care and N.’s adoption by L. and W. E. was cancelled by the Services on March 8, 2007. The Services’ decision to cancel N.’s adoption by L. and W. E. was overturned by the Board in their decision of June 13, 2007.

B.

10B., who is N.’s biological younger brother, was born on […], 2006. He was also placed with the L. and W. E. on […], 2006, when he was less than one month of age.

11B. became a crown ward without access and available for adoption on November 6, 2006. B. was never registered with the Ministry to be adopted by the L. and W. E. along with his brother N., but the documents were signed on January 3, 2007.

12B. suffered injuries, which two doctors confirmed were the result of Shaken Baby Syndrome. No other medical evidence contradicting these assessments was produced. L. E. and W. E. were B.’s sole caregivers when his injuries were suffered.

13B. was taken to the Kingston General Hospital on January 5, 2007 suffering from seizures. The L. and W. E. and the Services were initially advised that B. had suffered two subdural hemotomas, one more recent than the other, retinal bleeding and that his injuries may have been due to non-accidental trauma. Subsequently, both Dr. Richard Van Wylick of the Kingston General Hospital and Dr. Michelle Shouldice of the Toronto Hospital for Sick Children concluded that B.’s injuries occurred as a result of Shaken Baby Syndrome and therefore a result of non-accidental trauma.

14The Society advised the L. and W. E. that it was removing B. and N. from their care on January 16, 2007 and January 17, 2007 respectively. The Society reissued its notice regarding N. on March 8, 2007 and on March 22, 2007 advised the L. and W. E. that its decision would not be reversed and was permanent.

15On March 19, 2007, the L. and W. E. applied to the Board to review the Society’s decision to remove N. and stop his adoption by them. L. and W. E. did not seek a review of the Society’s decision concerning B. and, as a result, the review proceeded for only one of the two siblings placed with L. and W. E.

16The Board conducted a hearing on April 19, 2007 and May 1, 2007 and heard five witnesses, including expert medical evidence and an agreed statement of facts.

17The Board overturned the Society’s decision to stop N.’s adoption before L. and W. E. and in effect ordered the Society to return N. to L. and W. E.’s care and to complete N.’s adoption by L. and W. E.

Analysis

Leave to proceed before a single judge

18All parties agreed that the matter should proceed before a single judge due to the urgency of the matter and considering the child’s young age and the urgent need for stability and parental care for N.. Under s. 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, an application for judicial review may be made to the Superior Court of Justice with leave of a judge where the case is one of urgency and the delay required for an application to the Divisional Court is likely to involve a failure of justice. I am satisfied that there is urgency due to the child’s young age and a delay to apply to the Divisional Court would result in an injustice in the circumstances. Leave to bring the application is therefore granted.

19L. and W. E. attended without counsel. They were advised of the nature of the proceedings, and of their right to request an adjournment to retain counsel or to seek counsel to take their case on a pro bono basis. After some discussion and deliberation they decided they wanted the hearing to proceed and they did not seek an adjournment. L. and W. E. had legal counsel at their previous hearing before the Board.

Test

20In Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] S.C.J. No. 18, the Supreme Court of Canada reiterated that the test, which must be applied, is a functional and pragmatic approach when determining the standard of review. The following four factors are to be weighed:

(a) The presence of a privative clause or statutory right of appeal;

(b) The expertise of the tribunal relative to that of a court on the issue in question;

(c) The purposes of the legislation and the provision in particular; and

(d) The nature of the question – law, fact or mixed fact of law.

None of the factors is determinative and each must be considered and balanced.

21In Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] S.C.J. No. 17 (S.C.C.) at para. 24 the court clarified that there are only three standards of review, correctness, reasonableness and patent unreasonableness.

22I agree with both counsel that a standard of reasonableness should be applied to the Board’s decision as

(a) There is no privative clause or right to appeal the Board’s decision in the CFSA;

(b) The question at issue, which is what is in N.’s best interests, is one of mixed fact and law;

(c) The purpose of s. 144 of the CFSA is to provide an independent review before the tribunal; and

(d) The tribunal does not have greater expertise than the Court when determining a child’s best interests in these circumstances.

23Applying the reasonableness standard requires the reviewing court to decide whether the Board’s reasons, taken as a whole, can support the decision after a somewhat probing examination. To summarize, the tribunal’s decision should not be interfered with unless the party seeking the review has positively shown that the decision under review was unreasonable (see Law Society of New Brunswick v. Ryan, supra at para. 48).

24When applying a reasonableness standard the reviewing court must give deference to findings of fact and the power to review a decision of an administrative body does not authorize the court to retry cases decided by a tribunal or to re-weigh evidence (see College of Physicians and Surgeons (Ontario) v. K. (1987), 1987 4256 (ON CA), 59 O.R. (2d) 1 (C.A.) at pp. 19-20).

25The Society submits that while it agrees that the reviewing Court should apply a reasonableness standard, it argues that the Board should have accorded deference to the Society’s decision not to proceed with the adoption of N. by L. and W. E., because it exposed N. to an unacceptable risk of harm when placing a child with that family for adoption. The Society submits that it has a special expertise in this area in assessment risk of harm to children and a duty to ensure that adoptive parents do not constitute an unreasonable risk to the child.

26The Board submitted that it was required to conduct a hearing de novo and make its own determination of the best interests of the children under s. 136(2) of the CFSA, and having done so, to determine whether the decision of the Society should stand. As a result, it submits that it was not required to give deference to the Society’s decision or to review the Society’s decision on the basis of reasonableness.

27In British Columbia Chicken Board v. British Columbia Marketing Board (2002), 2002 BCCA 473, 216 D.L.R. (4th) 587 (B.C.C.A.), the British Columbia Court of Appeal held that the Chicken Board did not function as an adjudicative body, as it did not hear evidence or submissions from the party, conduct a hearing or issue reasons for its decision. The Marketing Board however did conduct a hearing, hear evidence and submissions and issue reasons. The Court of Appeal held that the Marketing Board was not required to give any significant deference to the Chicken Board’s decision as it did not function as an adjudicative body, notwithstanding that it has some special expertise related to Chickens.

28The CFSA sets out a detailed scheme for the Board to conduct an adjudication hearing process, allowing parties to call evidence, examine and cross-examine witnesses etc. which was followed in this case. The Director of Services has special expertise in the area but the decision was not an adjudicative process, as no hearing was held, no submissions were heard, no evidence was called and no reasons were given. As a result, the decision of the Society would be considered and weight accorded to its evidence in accordance with their expertise on the issue in question. In addition, the Board must consider the special responsibility of the Society in the adoption of children who have been entrusted to their care as crown wards. I therefore find that the decision of the Society is not entitled to deference but would be given weight based on the Society’s acknowledged expertise in the area and that the standard of review to be applied to the Society’s decision to stop the adoption would be one of correctness and not one of reasonableness in determining the child’s best interests in accordance with the factors set out in s. 136(2) of the CFSA.

29The factors which the Board must consider to determine the best interests of the child under s. 136(2) of the CFSA, when reviewing a decision of the Society, with regard to the adoption of a child, are generally similar to the factors set out in s. 37 of the CFSA in the child protection section. However, in the child protection section 37(3)12, the Society must also consider the degree of risk to find that a child in need of protection and under section 37(3)11 the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

30Generally, the Society and the Board would not be considering the risk of harm that the child would suffer if allowed to remain with the proposed adoptive parent, however, I find that in the circumstances of this case the risk of harm to N., if he was allowed to remain in the care of L. and W. E, is a factor that must be considered under the heading of “any relevant circumstances.” The Board did consider the risk of harm to N. and decided that it was not significant enough to remove N. from the care of L. and W. E. without deciding whether L. and W. E. had injured B. while in their care.

Was the Board’s decision to overturn the Society’s decision and allow L. and W. E. to proceed to adopt N. unreasonable?

31The Society submits that the Board’s decision to order the Society to return N. to the L. and W. E.’ care and proceed with the adoption was unreasonable because:

(a) It limited its scope of inquiry when it ruled that the hearing was not a trial to determine if the child B. D. was a “shaken baby” and/or “who caused the injury”.

(b) As a result of its failure to decide the issues on (a) it ignored the injuries caused to B. while in the care of L. and W. E., and considered only evidence related to N. thereby failing to reasonably consider the risk of injury to N. if left in L. and W. E. s’ care as a relevant circumstance.

32In its decision the Board stated that the hearing of the application was not a trial to determine if baby sibling B. was a “shaken baby and/or who caused the injury.” By limiting its mandate the Board decided that it did not have to decide if one of the adoptive parents for N. had shaken and seriously injured B. while in their care. The Board was aware of the serious injuries suffered by B. but did not decide if one of the adoptive parents caused those injuries to B.

33The Board was also aware that there was an ongoing criminal investigation of the matter by the Ontario Provincial Police. The Board was also aware that due to the serious brain injury suffered by B., when in the care of L. and W. E., and the fact that he is not a healthy child, it will be difficult to find an adoptive home for him.

34The Society has a duty to ensure that each child is in a safe placement for adoption. The evidence before the Board was that N. was removed from L. and W. E. s’ care because of the risk of harm to N., given the uncontradicted medical evidence that one of L. and W. E. had seriously injured B. while he was in their care.

35The evidence was also uncontradicted that N. is bonded to the L. and W. E. and he has received good care from L. and W. E. during his placement with them.

36The medical evidence before the Board from several doctors that B. was shaken and severely injured by either Mr. E. or Mrs. E. while the child was in their care was uncontradicted. All other possible explanations were considered and rejected by the doctors.

37I find that the Board’s decision not to decide whether one of the proposed adoptive parents had severely injured the child B. while he was in their care makes their ultimate decision unreasonable for the following reasons:

(a) The fact that a prospective adoptive parent has shaken and seriously injured a child while in their care is highly relevant to determine whether it would be in another child’s best interests to be placed with that family for adoption.

(b) If one of the proposed adoptive parents was found to have shaken and seriously injured a baby it would expose another two year old child to an unacceptable risk of harm to place that child with those parents for adoption.

(c) A young child who has been made a crown ward without access, has been found to be in need of protection and has therefore had a difficult start to his life. The Society is responsible to ensure that any placement of a crown ward is with adoptive parents who would not pose further risk of harm to the child.

(d) It is unreasonable and not in the child’s best interests to require the child to be exposed to further risks with regard to his future care and upbringing by placing him with adoptive parents that have seriously harmed another child. This is especially so when there are many other good safe adoptive homes available for N. where he would not be exposed to such risk of harm.

(e) The Board unreasonably discounted the second opinion of Dr. Shouldice, confirming that B. had been shaken and seriously injured because he/she had not seen and examined the child. There was no reasonable basis to support a discounting of Dr. Shouldice’s evidence.

Disposition

38For the above reasons, I find that the decision of the Review Board was unreasonable when it overturned the decision of the Director of the Society removing N. from the care of L. and W. E. The Review Board’s decision of June 13, 2007, is therefore quashed and set aside.

Costs

39If the parties are unable to agree on the issue of costs, they may make brief written submissions within 20 days from the release of these Reasons for Decision.

R. Smith J.