CITATION: The Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry v. A.J., 2014 ONSC 2688

COURT FILE NO.: 13DC1979

DATE: 20140505

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

R. SMITH J.

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

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

AND IN THE MATTER OF D. (12 years of age), L. (6 years of age), and A. (5 years of age)

BETWEEN:

The Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry

Applicant

– and –

A.J., W.J., and The Child and Family Services Review Board

Respondents

Cathy L. Legault, Counsel for the Applicant

Margaret Leighton, Counsel for the Child and Family Services Review Board, Respondent

Kevin Doyle, Counsel for A.J. and W.J. , Respondents

Stephane Perreault, Counsel for the children

HEARD in Ottawa: February 5, 2014

REASONS FOR decision

Overview

[1] The Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry (the “Society”) has brought an application for judicial review of the decision of Child and Family Services Review Board (the “Board”). The Board overturned the Society’s decision refusing the adoption application of the respondents, A.J. and W.J.’s (the “J.’s”) for the three children and ordered that the children be placed for adoption with the J.’s in Manitoba, largely to preserve their native cultural identity.

[2] Two adoption plans had been submitted to the Society for the three children, namely D. (12 years of age), L. (6 years of age) and A. (5 years of age). One adoption plan was presented by the R.’s, who have been the children’s foster parents for about three and a half years; this plan was approved by the Society. An adoption plan was also filed by the J.’s, who live in Manitoba, which was refused by the Society. A.J. is the children’s paternal aunt, however the children have never visited the J.’s since birth and have no relationship with them.

[3] The Society submits that the Board’s decision, overturning its refusal of the J.’s adoption plan, and ordering that all three children be adopted by the J.’s, was unreasonable, because it was not within a range of possible acceptable outcomes, when the factors to determine the children’s best interests are considered. The Society also submits that the evidence before the Board was overwhelming, that the R.’s adoption plan was in the children’s best interests and that the J.’s adoption plan was not in the children’s best interests. The Society submits that the Board made a palpable and overriding error by giving undue weight to only one of the factors, namely the children’s partial native background and failed to consider the children’s overall best interests. The evidence is unclear whether the children have 1/4, 1/8, or 1/16 native heritage, but at a minimum the children have some native heritage.

[4] The J.’s submit that the Board’s decision was reasonable because it weighed the best interest factors and determined that ensuring that the children had access to their native culture, heritage and traditions outweighed the other factors of continuity of care, the children’s wishes and maintaining continued sibling contact which favoured adoption by the R.’s.

[5] The Board submits that its decision was reasonable and submits that there are no exceptional circumstances that would permit the Court to consider fresh evidence on the application for judicial review.

[6] The children’s lawyer took a strong position in support of the Society’s application to overturn the Board’s decision because the oldest child has expressed a strong desire to be adopted by the R’s and not by the J’s, which he submits was not given proper weight by the Board. The oldest child is now 12 years of age. The children’s lawyer further submits that the Board’s decision was unreasonable and not in the children’s best interests, because it gave undue weight to preserving the children’s 1/16 native heritage, and ignored their 15/16 French and English cultural heritage.

ANALYSIS

Issue #1: Should the Society be Permitted to Introduce Fresh Evidence at the J.’s Judicial Review Hearing?

[7] The test for the admission of fresh evidence on appeal was set out in R. v. Palmer, (1981) S.C.R. 759 and was summarized in the decision of Alghaithy v. University of Ottawa, [2011] ONSC 5879 (Div. Ct) at para. 31 as follows:

The test for the admission of fresh evidence in Palmer is:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result (see Ontario Federation of Anglers & Hunters at para. 61)

[8] In para. 33 of the Alghaithy decision the Divisional Court stated that additional affidavit evidence will be allowed on a judicial review application where there is an issue of according natural justice before the Tribunal or where there was an absence of evidence on an essential point in the decision. Neither of these exceptions arises on the facts before me.

[9] The Society filed an affidavit of Angela Arcuri, a Service Manager employed with the Society. Her affidavit largely provides a summary of the important aspects of evidence presented at the hearing before the Board. In addition, it contains a more recent letter from the oldest child and middle child strongly stating their desire to remain with and be adopted by the R.’s stating that they want the R.’s to be their mom and dad. A large part of Ms. Arcuri’s affidavit consists of submissions rather than fresh evidence.

[10] The children’s lawyer has expressed the children’s strong desire to remain with the R.’s to be adopted by them and indicated that they strongly objected to being moved to Manitoba to be adopted by the J.’s. This evidence was before the Board and this judicial review and as a result, I find it does not meet the test to allow fresh evidence to be introduced at this judicial review hearing. I find that the exceptional and rare circumstances required to admit fresh evidence on a judicial review, do not exist in this case.

Disposition of Issue #1

[11] The Society’s request to file fresh evidence on the judicial review is dismissed for the reasons given above.

Issue #2: Was the Board’s decision overturning the Society’s refusal of the J.’s plan of adoption unreasonable?

Standard of Review is Reasonableness

[12] The test of reasonableness was outlined in Ryan v. The Law Society (New Brunswick) 2003 SCC 20, 2003 Carswell NB145 SCC by Iacobucci J. who stated as follows at para. 55:

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. 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 (Seldom supra at para. 56) this means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation, even if this explanation is not one that the reviewing court finds compelling (Seldom supra at para. 79).

[13] The parties agree that the standard of review of the Board’s decision is one of reasonableness as outlined in the case of Dunsmuir v. New Brunswick, [2008] S.C.R. 190.

[14] In Dunsmuir, at paras 47-49, the Supreme Court defined the reasonableness standard and at the end of para. 47 as follows:

…In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process. It is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible with respect to the facts and the law.

[emphasis added]

Legislative Context

[15] The Board is a Statutory Tribunal that exercises jurisdiction under a number of Statutes including the Child and Family Services Act, RSO 1990, c. C.11 (“CFSA”). Section 1 of the CFSA states that the primary purpose of the CFSA is to “promote the best interests, protection and well-being of children”.

[16] Subsections 1(2) and (3) of the CFSA sets out other purposes as follows:

2. To recognize that the least disruptive course of action that is available and that is appropriate in a particular case to help a child should be considered.

3. To recognize that the children’s services should be provided in a manner that,

i. respects the child’s need for continuity of care and for stable relationships within a family and cultural environment,

ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,

iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and

iv. includes the participation of a child, his or her parents and relatives and the members of a child’s extended family and community, where appropriate.

[17] The Board may review a decision of a Children’s Aid Society “to refuse an application to adopt a particular child by a foster parent, or other persons” pursuant to section 144(1)(a) of the CFSA.

[18] Section 144(11) of the CFSA sets out the mandate for the hearing as follows: “The Board shall, in accordance with its determination of which action is in the best interests of the child, confirm, or rescind the decision under review, and shall give written reasons for its decision.

[19] Section 136(2) of the CFSA outlines the following criteria for the Board to consider to determine the best interests of the child:

(1) The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

(2) The child’s physical, mental and emotional level of development.

(3) The child’s cultural background.

(4) The religious faith, if any, in which the child is being raised.

(5) The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.

(6) The child’s relationship by blood or through an adoption order.

(7) The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

(8) The child’s views and wishes, if they can be reasonably ascertained.

(9) The effects on the child of delay in the disposition of the case.

(10) Any other relevant circumstance.

[20] In addition section 136(3) of the CFSA states: “Where an order or determination is made in the best interests of a child and the child is an Indian or native person, the person shall take into consideration the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the child’s cultural identity.”

Children are Attached to the Foster Parents

[21] In the Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165, the Supreme Court held that the most important factor when determining the best interests of the child was the psychological bonding of the child with the foster family. At the bottom of page 3 the Supreme Court stated as follows:

…Within the realm of the “best interests of the child”, the most important factor in this case concerned the psychological bonding of the child to the foster family. The emotional well-being of a child is of the utmost importance, particularly where the evidence points to possible long-term adverse consequences resulting from the removal of the child from his or her foster family and the return to his or her birth parents. The focus of maintaining family units is only commensurate as long as it is in the best interest of the child; otherwise it would be at cross purposes with the plain objectives of the Act. The best interests of a child require different solutions over time and such interests may have to take precedence over any parental interests.

[22] In its decision the Board stated that there was no clinical assessment of the foster parents and no expert testimony about the children’s attachment to the foster parents. This finding is accurate however the Board continued and stated at para. 63 as follows:

There was some evidence that attachment to the foster parents or any caregiver was an issue to some extent for all three sisters.” The worker used the language of “attachment issues” when referring to the youngest two sisters. The home study referred to problems with attachment to the birth parents for all three sisters as an ongoing concern with attachments. It is uncertain what the true depth of the bond is to the foster parents.

[23] In the SAFE Assessment for the R.’s the bond between D. (the 12 year old child) and the foster parents was described by the evidence of the workers, Ms. Barnes and Ms. Walker, as follows: “Although she is observed to be comfortable with both parents, she tends to more often seek out D.R. for emotional support/guidance as needed. The emerging personality is that of a confident, happy child, increasingly secure in herself and her situation.” Ms. Walker testified that D. was very attached to both her foster parents, more specifically T.R. This uncontested evidence indicates a positive attachment by D. with her foster parents and is contrary to the Board’s finding for D.

[24] At para. 64 of its decision, The Board found that the younger sister L. (the 6 year old child) occasionally called her foster parents “mom and dad”. However, at page 5, the R.’s SAFE Assessment states that: “L. and A. will often refer to T.R and D.R as ‘Dad’ and ‘Mom’.” In the SAFE Assessment, L. was described as a “calmer, more loving version of her spirited self.” since coming to the R’s home. “She will now accept parental authority and will seek out either T.R. or D.R. for comfort/support as needed”. The SAFE Assessment also indicated that A. the youngest child was very attached to her foster parents and her extended family.

[25] The fact that A. was very attached to her foster parents is very believable because A. was only two years of age when the three sisters were placed with the foster parents. Observations of A. in the home environment support that she is very comfortable and happy. The uncontested evidence before the Board was that A. was very attached to her foster parents and this is contrary to the Board’s finding.

[26] The oldest child D.’s wishes were expressed in writing and at the hearing, where she stated as follows in a handwritten note:

I do not want to go to Manitoba. Please do not make me go there. I love my daddy and mommy and they love me too and my sisters too. I will be sad and my sisters will be sad I know them real well. They are special to us and I love them so much and they love us so much.

[27] The above uncontested evidence contradicts the Board’s finding that the children’s bond to the foster parents was uncertain, especially for the child and A and D who were described as very attached to their foster parents. This is palpable and an overriding error in the finding of the Board which affected their finding on the best interests of the children.

SAFE Assessment Strongly Recommends Adoption by the R.’s

[28] The SAFE Assessment Report of the R.’s proposed adoption plan stated that T.R. (the foster father) worked as an Assistant Bank Manager and D.R. (the foster mother) was a stay at home mom providing full-time care to the three children. D. has her own bedroom, while L. and A. currently share a bedroom. Renovations are underway to renovate the attic to create separate bedrooms for the girls. In addition, both foster parents have the support of their families who have embraced the three children as family members.

[29] The evidence was uncontested before the Board that the children have done extremely well in the R.’s care as their foster parents. The children are currently aged 12, 6 and 5. The children have been residing with their foster parents in Long Sault, since November 2, 2010, a period of almost three and a half years.

[30] At para. 62 of its decision, the Board acknowledged that the continuity of care and the wishes of the children would favour placement with the foster parents.

[31] In the SAFE Assessment of the R.’s, Ms. Barnes stated that there had been remarkable progress with the girls and she described the R.’s parenting styles as: “very strong… and clearly comfortable in the role as parents. They had certainly established a routine”.

[32] The foster parents came forward with their adoption plan in November of 2012. Ms. Barnes, the Society’s Child Protection Worker, conducted a Structured Analysis Family Evaluation (“SAFE”) Assessment (also referred to as a “Home Study” by the Board) of the R.’s plan, which was extremely positive. Ms. Barnes has been employed with the Society for 10 years and has been completing adoption assessment for approximately four years. She testified that the R.’s SAFE Assessment was one of the strongest assessments she had ever completed.

SAFE Assessment Conducted in Manitoba Recommends Against Adoption by the J.’s

[33] Gordon Zacharias, a Child Protection Worker with the Child and Family Services of Central Manitoba prepared a SAFE Assessment of the J.’s application to adopt the three children. Mr. Zacharias, who has been a Child Protection Worker for 23 years, stated that he had conducted six SAFE Assessment Reports and this was the first that he had not approved.

[34] Mr. Zacharias expressed the following concerns about placing the three children with the J.’s for adoption; a) the J.’s had a limited support network; b) the J.’s had a limited repertoire of parenting strategies, and exhibited rigidity in parenting, their own children; c) they had marginal living space, especially considering the addition of three more young children to their three bedroom trailer home; d) there had been previous reported child protection concerns with S. the J.’s 15 year old son’s sexual interactions with young girls; e) the children lacked any meaningful connection and had no relationship with the J.’s; f) the three children needed to stay close to their existing supports; g) he was concerned about the children’s adjustment to being moved to Manitoba from a stable foster home in Eastern Ontario; and h) he was also concerned that A.J.’s two year old step-sister may have Fetal Alcohol Syndrome and the level of attention that she required from the J.’s as her guardian, would reduce the attention available to be given to the other three children.

[35] The Board found that the J.’s did have a good support network and preferred the evidence of the Guardianship Assessment on this issue. This was a reasonable finding.

[36] The J.’s 15 year old son has special needs as he was diagnosed with Tourettes Syndrome, ADHD and a personality development disorder. A.J. has been previously involved with CAS complaints as a result of parenting struggles she has had with her own children. The J.’s advised that their 15 year old son planned to leave home at age 18. The Child Disability Service stated that the plan was for S. to leave home at the age of 21.

[37] When S. was 13 years old he was observed with a three year old girl who was pulling up her pants. S. denied that he touched the child inappropriately. Mr. Zacharias stated that matter was dealt with appropriately by the parents, but A.J. had stated that she had to be very vigilant when S. was around young children. A second incident occurred when S. entered a girls’ bathroom wearing a ski mask.

[38] In 2009 there was a report to CAS that A.J. used excessive discipline and used physical punishment on S. and her older daughter M. A.J. admitted to slapping M. across the face when she disciplined her.

[39] At para. 72, in its reasons, the Board found that: “the sisters will be negatively impacted in the short term by a change in placement but had not received any expert evidence or assessment on how they children would fair or cope.” The Board accepted that the older sister would resist the placement and would need a great deal of support. The Board added that while it would be difficult for the sisters to adjust to a new home that is not to say that it could not be done with a lot of appropriate support. However, the Board did not have any evidence before it that the children would be able to receive the necessary support from the J.’s or others. Mr. Zacharias’ concern remains valid.

[40] The J.’s live on a disability pension and the physical space at their home was a concern for Mr. Zacharias. Their plan is for the three children to share a bedroom, which is 14x16 feet, with A.J.’s the two year old step-sister. S. (their 15 year old son) would have his own room and the J.’s would have their own room. The J.’s testified that they were willing to renovate their mobile home to accommodate their children in the future however this had not been started at the time of the hearing and so Mr. Zacharias’s concern about adequate space remained valid.

[41] The following statement was made at page 19 of the Guardianship Assessment about M., the J.’s oldest daughter: “M. moved out of the family home when she turned 18 years to gain her independence.” At the time of the hearing M. was 19 years old and pregnant. The Guardianship Assessment indicated that S., A.J.’s 15 year old son had a close attachment to his sister M. M. was supposed to assist her parents to care for the children. However, as M. is pregnant with her own young child she will not be able to be of any support to the J.’s to assist with caring for the three young girls in addition to their own children.

[42] The children have not had a relationship of any significance with the J.’s prior to the Society’s involvement and they are strangers to the children. The children also have two half-siblings within the jurisdiction of Stormont Dundas County who have continued to have contact with the three girls while they have been residing at their foster home. The R.’s have supported and encouraged the ongoing relationship between the girls and their step-brothers who are in a separate foster home at this time. They see each other at least monthly, celebrate birthdays together, and attend one another’s recitals and hockey games.

[43] The SAFE Assessment is a standardized assessment or Home Study used by both the Children’s Aid Societies of Ontario and Manitoba to assess the appropriateness of a family for adoption. In the SAFE Assessment of the J.’s Mr. Zacharias recommended against an adoption placement of the three girls with them in Manitoba. Mr. Zacharias considered many factors discussed above and had valid and uncontested reasons for recommending against the children’s adoption by the J.’s.

The Home Licensing Study and Guardianship Assessment Were Not Prepared for Adoption of the Three Children

[44] The Board chose to reply on the evidence of the Home Licencing Study and the Guardianship Assessment, which were not prepared for the purpose of assessing the adoption of the three children. They were prepared for a different purpose namely to assess the J.’s ability to care for A.J.’s two year old step-sister. The Board rejected the Manitoba SAFE Assessment which recommended against the adoption by the J.’s which was the only assessment, which considered whether the J.’s were acceptable to adopt the children. This finding was unreasonable.

[45] A.J., the children’s paternal aunt, is currently the guardian of her two year old step-sister (her father’s child). An update of the Foster Home Licencing Study was conducted by Tammy Burke of the Kinosao Sipi Minisowin Agency (“KSMA”) on April 25th of 2012 with regards to A.J.’s two year old step-sister. This assessment did not follow the SAFE standard as required by the Ministries of Child and Family Services with respect to adoption of children in Ontario and Manitoba. Ms. Burke’s Home Licensing Study considered whether the J.’s could provide a foster home for A.J.’s two year old step-sister. This Licensing Study was unrelated to the proposed adoption of the three children by the J.’s and unlike Mr. Zacharias’ SAFE Assessment, did not take into consideration the added circumstances and dynamics of adding a 12 year old, a 6 year old and a 5 year old child to the J.’s home together with their existing children.

[46] An Independent Guardianship Assessment was also conducted by Sheryn Seunath and Mark Berkwitz dated October 16, 2013, which also considered the guardianship by the J.’s of A.J.’s two year old step-sister. In their Guardianship Assessment they did not request any information from the Manitoba CAS and did not ask for the prior child protection history with the J.’s family. Mr. Zacharias testified that he was not aware that KSMA had ever conducted a Home Study because KSMA had not seen and were never given any background information history of complaints against the J.’s with the Manitoba CAS.

[47] Both the Licensing Study and Guardianship Assessment did not consider prior CAS complaints about the J.’s parenting. Tammy Burke, who completed the foster parent renewal approval in April of 2012, testified that she was also not aware of the allegations of sexually inappropriate acts by S., the J.’s 15 year old son, and she did not request a CAS history because she was only preparing an update.

[48] The Guardianship Assessment conducted by Seunath and Berkwitz did not take into consideration the J.’s child protection history with the CAS because A.J. told to her that she had no history of prior involvement with the CAS. In testimony before the Board, A.J. testified that she denied having any history of prior complaints with the CAS to the worker because all of her CAS files had been closed. As a result, the uncontested evidence before the Board was that both the Foster Home Licencing Study and the Guardianship Assessment were made without any inquiry or knowledge of the history of prior complaints against the J.’s with the CAS of Manitoba, and both studies were prepared for a different purpose and were not prepared to consider the proposed adoption of the three children.

[49] At para. 84 of their decision, the Board accepted an implication that the original Foster Home Licencing Study, would have been privy to the J.’s full child welfare history with the Manitoba CAS. However this finding was specifically contradicted by the uncontradicted evidence of Mr. Zacharias before the Board.

Society’s First Awareness of the Children’s Native Heritage

[50] There was some dispute as to when the Society was first contacted by A.J. and advised that the children were of native heritage and that the J.’s would potentially adopt them. The Society’s business records indicated that the J.’s first contact with it was on March 26, 2012. The Board preferred the memories of P.L. Jr., the children’s biological father, who testified that the Society first came aware of the J.’s wish to care for the children in the fall of 2011. The Society’s evidence was that if they had learned of the J.’s plan to adopt the children earlier in the process it would have undertaken measures to assess that plan. This does not appear to be a major factor affecting the determination of the best interests of the children; however it may explain why the Society did not take steps sooner to teach the children about their native heritage and culture, while placed with the foster parents.

Loss of Children’s Relationship with Step-Brothers

[51] At para. 34 of its decision, the Board stated that it was undisputed that the three sisters, as siblings, should be placed together given their bond and the importance of sibling relationships. It also stated that the in-person contact among the children and their step-brothers should be maintained because siblings relationships were the longest relationship we have are the most important. However, it will be virtually impossible for the three children to maintain their relationship with their step-brothers if they are moved to Manitoba. The Board stated that contact with their step-brothers could be maintained through skype, the internet and possibly in person. The Board further stated that it was “open to the Society, which has care of the brothers, to arrange in-person visits for them” and added that contact with the brothers was more important for the oldest sister than the youngest sister for whom it is “out of sight and out of mind”.

[52] A placement for adoption with the R.’s would have ensured that the children maintained their relationship with their step-brothers which would have been in their best interest, whereas it is very uncertain that the three children can maintain their three sibling relationship with their step-brothers if the children are placed for adoption with the J.’s family in Manitoba.

Maintaining the Children’s Native Culture, Heritage and Cultural Identity

[53] The Board placed significant weight on the importance of maintaining the children’s connection to their native culture. At the outset of the Society’s involvement with the family, the Society made efforts to determine if there was any religious or native component to planning for the children. The children’s biological father P.L.Jr. did not advise the Society that there was any native connection for the girls and identified the girls as being Caucasian. In addition, the Cornwall Family Court found that the girls did not have any connection to a native community or to an Indian band.

[54] In the SAFE Assessment prepared for the R.’s adoption plan, the worker indicated that the children shared the same background as of the adopted applicants who are Caucasian. The R.’s live in the village of Long Sault which is approximately 20 minute drive from the Mohawk Council of Akwesasne Reserve and a 60 minute drive to the Native Friendship Centre in Ottawa.

[55] Joanne Brent, a Mohawk teacher and a foster parent with the Society, testified before the Board that she was prepared to assist the children and their foster parents in gaining knowledge of their Mohawk cultural heritage. She testified that she would act as a resource person and consultant to the R.’s for as long as she was needed. She testified that she would teach the children about native cultural practices such as: attending powwows, singing, dancing, reading legends, taking them to the long house, the friendship centre, including talking to elders, attending programs and museums; learning about mother earth and how to prepare aboriginal food; how to make moccasins, earrings, beadwork and dream catchers and to expose them to online portals and colouring books that are available to native children.

[56] The foster mother had testified that she only became aware that the children had some native ancestry in the fall of 2012 and the Board hearing was in May 2013. The Society conducted an investigation of the paternal grandfather’s connection with the Mohawk Council of the Akwasasne and of Tyendinag. Both native bands advised the Society that they had no record of the paternal grandfather living with them and advised the Society that the children did not have band status. The time taken for this investigation explains why the foster mother did not act more quickly to help the children learn about their native culture. The foster mother D.R. became aware that the children had some native ancestry through their paternal grandfather shortly before testifying that she was prepared to take steps to nurture and teach the children about their native heritage.

[57] The foster mother testified that she was prepared to encourage the children to learn about their native culture and she was prepared to involve the J.’s to assist to provide this guidance to meet the children’s culture needs. The Board effectively found that because the R.’s had not taken any steps to support the children’s native cultural heritage until shortly before the Board hearing, they had not demonstrated any native cultural competence and that Ms. Brent’s proposed involvement was “too little too late”. The Board dismissed the R.’s ability, with Ms. Brent’s assistance, to allow the children to gain knowledge of their Mohawk culture and traditions.

[58] A determination of the best interests of the children requires an assessment of which adoption plan would best meet the children’s needs in the future. The Board’s reasons indicate that it determined the best interests of the children by deciding whether the R.’s or the J.’s could best nurture and maintain the children’s native heritage and culture. The Board decided that the J.’s, who live a 15 minute drive from a native reserve in Manitoba, were better able to maintain and nurture the children’s native culture and heritage. This finding is reasonable based on evidence before the hearing. However, this was not the question for the Board to decide. The question to be decided was whether the J.’s or the R.’s adoption plan was in the best interests of the children, considering all of the factors and not just who was best able to maintain the children’s native heritage and culture. Maintaining the children’s native heritage and culture is only one factor to be considered and not the only factor in determining their best interests.

The Board’s Decision was Unreasonable

[59] I find that the Board’s decision placing the children for adoption with the J.’s and overturning the Society’s decision to place the children for adoption with the R.’s was unreasonable and also that the Board made palpable and overriding errors of fact when determining that the best interests of the children, when it overturned the Society’s decision and ordered that the children be moved to Manitoba and adopted by the J.’s for the following reasons:

(a) the uncontradicted evidence before the Board was that the SAFE Assessment for adoption by the R.’s was very strong, that the R.’s could meet the children’s physical, mental and emotional needs and were able to provide the appropriate care and treatment for those needs, and the R.’s were approved to adopt the three children.

(b) The children have improved dramatically since being placed with the R.’s for almost the past three and a half years. The children are presently doing very well in the care of the R.’s and have developed a strong attachment with the R.’s based on the SAFE Assessment of the Society. This is especially true for the youngest child A. as the foster parents are the only parents she has known and the 12 year old has expressed a strong desire to be adopted by the R.’s.

(c) The SAFE Assessment report prepared by Mr. Zacharias for the Manitoba Children’s Aid Society concluded that the J.’s were not approved to adopt the three girls. Mr. Zacharias had reasonable concerns about the adequacy of the J.’s physical space for the three children, where the three girls plus a two year old, who may suffer from Fetal Alcohol Syndrome would share a one bedroom; the CAS had previously expressed concerns about the aunt’s rigidity in parenting as she had used physical discipline on her own children; there are currently two other children living in the J.’s home, including a 15 year old boy with mental disabilities and there is some risk of inappropriate sexual behaviour with young girls which will require special attention.

(d) The KSMA Home Licensing Study and the Guardianship Assessment were not prepared for the purpose of considering whether J.’s could adoption these three children, but rather for the purpose of a foster placement and for a guardianship placement with the J.’s for one child, namely A.J.’s two year old step-sister. The KSMA Home Study and Guardianship Assessment, relied on by the Board, did not consider the effect on the dynamics of the J.’s family of adding the three sisters to the J.’s household. I find that the Board’s acceptance of the KSMA Home Study and Guardianship Assessment, which were not prepared for adoption purposes, over the SAFE Assessment prepared by Mr. Zacharias an experienced social worker with well-reasoned concerns finding that the J.’s were not acceptable to adopt the children, constitutes a palpable and overriding error and is not a reasonable decision as defined in Dunsmuir.

(e) The KSMA assessors did not obtain information about the prior complaints to the CAS about the J.’s parenting, which included an instance of inappropriate parenting by A.J. (physical slapping of her daughter), and two incidents of possible inappropriate sexual acts by their 15 year old son S. with young girls. The history of prior complaints about the J.’s parenting to the CAS was relevant information that was ignored by the Board and by the KSMA assessors.

(f) The Board unreasonably dismissed the foster parents’ ability to maintain and nurture a connection with the children’s native cultural background by using the assistance of Ms. Brent, a Mohawk consultant and teacher. The evidence was undisputed that the R.’s live next to the Akwesasne Reserve on Cornwall Island and in close proximity to the Native Cultural Centre in Ottawa. I find that the Board’s decision that the R.’s could not nurture and maintain the children’s native culture and background was not supported by the evidence.

(g) Placing the children for adoption with the R.’s would allow the children to continue to develop in a positive manner in a secure place, and to maintain the continuity of their relationships as they have been living in a stable situation with the foster parents for the past three and a half years. The children are developing extremely well with the R.’s and do not have any relationship whatsoever with the J.’s who are unknown to them. The Board failed to give substantial weight to this factual situation when determining the children’s best interests which makes its decision unreasonable.

(h) The Board ignored the strong wishes of the oldest two children, but particularly the 12 year old D., to continue to live with and be adopted by the R.’s. D. also expressed a strong wish not to be adopted by the J.’s. Children in Ontario older than 7 years of age must consent to be adopted. Clearly the 12 year old child is not consenting to the adoption by the J.’s, the Board ignored her wishes and in the factual circumstances was an unreasonable decision by the Board.

(i) The children presently have a secure place as members of the R.’s family, including the R.’s extended family, while they have no knowledge or relationship with the J.’s. If adopted by the J.’s, they would be three additional children in an existing family (including two special needs children). The Board’s decision disregarding this factual situation was unreasonable.

(j) The children have a relationship by blood with A.J. as she is their paternal aunt and do not have a blood relation with the R.’s. However, the importance of the continuity and stability of the children’s care to their best interests and the negative effect on the children if they were disrupted and moved from their present home to Manitoba to live with an aunt that they do not know and with whom they have no relationship does not justify maintaining a blood relationship and makes the Board’s decision unreasonble.

(k) The children’s lawyer submitted that the children are 15/16 Caucasian and 1/16 native. The evidence confirmed that the children have some native heritage through their paternal grandfather. The children have always believed and were identified to the Society by their father as being Caucasian. I find that the Board’s decision to remove the children from their present stable home, where they can be adopted, and transfer them to live with an aunt in Manitoba, that they do not know and who was not approved for adoption, for reasons previously given, was not reasonable. The Board placed an unreasonably high weight on which family could best maintain the children’s full native cultural upbringing. This is but one factor and I find that the Board placed an unreasonable amount of weight on this one factor, and ignored the best interests of the children, the children’s wishes, especially the 12 year old, and all of the other factors which favour adoption by the R.’s.

Disposition

[60] I find that the Board’s decision overturning the Society’s refusal of the adoption plan submitted by the J.’s was an unreasonable decision as defined in Dunsmuir, that the Board made palpable and overriding errors of fact as identified above, and its decision was not supported by any reasons that could stand up to a somewhat probing examination. In addition, I conclude that the Board’s decision in determining that the best interests of the children favour their placement for adoption with the J.’s in Manitoba, individuals with whom the children have no relationship whatsoever, is not within the range of possible acceptable outcomes that are defensible in respect to the facts and law when the factors to determine the best interests are considered.

[61] I further find that the evidence on the record before the Board was overwhelming, that the best interests of the three children would be met by placing them for adoption with the R.’s and by refusing the J.’s adoption plan. The children’s native ancestry, cultural identity and traditions could be adequately preserved with the assistance of Ms. Brent, a Mohawk foster parent and teacher who is prepared to assist the R.’s to ensure that the children’s native culture and heritage is maintained.

[62] An order of certiorari is granted quashing the decision of the Board and reinstating the decision of the Society to allow the adoption of the children by their current foster parents, the R.’s, and preventing the Board from reconvening the hearing of the application by the respondents for review under the Child and Family Services Review Board Rules.

The Hon. Mr. Justice Robert J. Smith

Released: May 5, 2014