Child and Family Services Review Board, 2015 ONSC 5617
DIVISIONAL COURT FILE NO.: 15-DC-2144
DATE: 2015/09/09
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Justice Ronald Laliberté Jr.
BETWEEN:
The Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry
Applicant
– and –
S.V.D., M.V.D., C.C., G.C. and Child and Family Services Review Board
Respondent
Peter Chisholm, counsel for the Applicant
S.V.D. and M.V.D. (self-represented)
C.C. (Self-represented)
G.C. (Not present)
Child and Family Review Board (not present)
HEARD: September 2, 2015
RULING ON MOTION TO STAY THE CHILD AND FAMILY SERVICES REVIEW BOARD’S DECISION PENDING JUDICIAL REVIEW
INTRODUCTION
[1] On August 28, 2015, the Child and Family Services Review Board released its decision, with reasons to follow, in regards to applications under section 144 of the Child and Family Services Act. These applications were filed by two separate foster families wishing to adopt the same child. Both were heard jointly on consent of the parties.
[2] The end result of the Board’s decision is that the two-year-old child is to be placed immediately for adoption with the V.D. foster family. This means the immediate removal of the child from the care of the C. foster family with whom he has been residing since May 22, 2014.
[3] This result is contrary to the Society’s position who had dismissed the V.D.’s request to adopt the child.
[4] The child was placed on adoption probation by the Society with the C. foster family on October 22, 2014.
[5] M.V.D. and S.V.D. have brought an urgent motion requesting an order to enforce the decision of the Board.
[6] An application to the Divisional Court for a judicial review of the Board’s decision was filed by the Society on September 1, 2015. Both foster families and the Board are named as Respondents.
[7] The matter is set to be heard by a single judge in February 2016.
[8] The Society has also filed and urgent motion seeking a temporary order staying the Board’s decision pending a final decision of the Divisional Court.
[9] The issues for the Court in the context of these urgent motions are as follows:
Should the Court issue an order to enforce the decision of the Board?
Should the Court stay the Board’s decision pending completion of the Judicial Review of the Divisional Court?
THE FACTS
[10] By way of brief history, the child subject to these proceedings is C.R. who was born on July 4, 2013. There have been a number of health-related issues since his birth. He was never in the care of his biological parents.
[11] He was discharged from the hospital on August 16, 2013 and placed in the care of M.V.D. and S.V.D. who operated a foster home.
[12] C.R. resided with the V.D. family until his removal on May 22, 2014 at which time he was placed with foster parents C.C. and G.C. where he has since remained.
[13] There is obviously much controversy, debate and disagreement on the circumstances which led to the removal of C.R. from the V.D. foster home, the dismissal by the Society of their request to adopt C.R. and ultimately, the closing of their foster home.
[14] The evidentiary record in these motions does not allow for factual findings by the Court on what led to the Society’s position. The issues raised in these motions do not require the Court to make such findings.
[15] The end result is that on July 16, 2014, C.R. was found to be a child in need of protection and made a Crown ward by Superior Court Justice Labrosse.
[16] C.R. was placed on adoption probation by the Society with the C. foster family on October 22, 2014.
[17] The V.D. family filed a request to adopt C.R. on October 23, 2014 which was rejected by the Society.
[18] The Society’s refusal led to a complaint filed by the V.D.s to the Board under section 68.1 of the said Act. It is also the basis for the application under section 144 which is the subject matter of the proposed judicial review. The application was filed on October 28, 2014.
[19] On November 7, 2014, the C. foster family filed a section 144 application based on the Society’s position that the adoption probation could no longer proceed.
[20] On November 25, 2014, both section 144 applications were joined, on consent, and proceeded to a hearing.
[21] The Board issued the following decision and order on August 28, 2015:
DECISION
“These are two Applications made under section 144(3) of the Child and Family Services Act, R.S.O. 1990, c. C 11, as amended, for a review of the Respondent’s decision to refuse the applications to adopt C.R. born July 4, 2013 (the Child).
Having heard the evidence and the submissions of the parties, the Board grants the V.D. Application and refused the C. Application. Reasons for this decision will follow which will contain further orders or directions incident to the placement of the Child with the V.D. Applicants.
The parties may provide a copy of this order and of the reasons for decision to any medical professionals involved with the Child and to the court in the adoption proceedings.
The Board recommends in the Child’s best interest that the supervision of the Adoption Probation period be provided by a different worker preferably from Mr. Boisvenue’s team and under the supervision of another Service Director.
The Board orders:
(1) The decision of the Society refusing the application of the C. Applicants is upheld;
(2) The decision of the Society refusing the application of the V.D. Applicants to adopt the Child is rescinded;
(3) The Child shall be placed immediately for adoption with the V.D. Applicants; and
(4) The V.D. Applicants and the Child be permitted to immediately meet with all the medical professionals and provided with an update of the Child’s medical status and prognosis.
The Board will remain seized for 60 days from the date its reasons are released to monitor implementation of its decision.
A certified copy of this order may be filed with the Superior Court of Justice and upon filing it is deemed to be an order of that Court and enforceable as such in accordance with s. 19(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22, as amended”.
POSITION OF THE PARTIES
[22] Based on the principles set out by the Supreme Court of Canada in RJR MacDonald Inc. v. Canada (A.G.) 1994 117 (SCC), [1994] 1 S.C.R. 311, counsel for the Society argues that the stay should be granted:
[23] His view is that:
The application raises serious questions;
The child will suffer irreparable harm;
The balance of convenience favours the Society’s position.
[24] Both M.V.D. and S.V.D. were present at the hearing of these motions. They were self-represented. The Court offered to adjourn the hearing of the Society’s motion to ensure that they properly understood and were able to respond. They declined the Court’s offer and chose to proceed.
[25] Their position is that the child should be returned to them as decided by the Board. They are willing to work cooperatively with the C. family to ensure a smooth transition for the child.
[26] They are very critical of the Society and raise a number of serious allegations of dishonesty.
[27] Mr. C. was also present at the hearing. In essence, his position if that he wishes to follow the Society’s lead as to what is best for the child.
THE LAW
[28] In deciding these issues, the Court is guided by the following principles:
- A certified copy of a tribunal’s decision or order in a proceeding may be filed in the Superior Court of Justice by the tribunal or by a party and on filing shall be deemed to be an order of that Court and is enforceable as such.
-s. 19(1) Statutory Powers Procedure Act
- The paramount purpose of the Child and Family Services Act is to promote the best interests, protection and well-being of children.
-s.1(1) Child and Family Services Act
- The test to be applied is whether there is a serious question to be tried, whether there will be irreparable harm to the chid if a stay is not granted and whether the balance of convenience favours granting a stay.
-RJR MacDonald Inc. v. Canada (A.G.) 1994 117 (SCC), 1 S.C.R. 311 (S.C.C.)
-Berry v. Berry [2010] O.J. no. 6248 (Ont. C.A.)
- This test having been developed in a commercial context, must be applied to accommodate the overarching concern for the best interests of the children; the application of the three-part test is to be made within the context of the paramountcy of the best interest, protection and well-being of the child;
-C.A.S. (Simcoe) v. S.T. 2009 57458 (ON SCDC), [2009] O.J. no 4402
-C.A.S. (Manitoulin) v. B.(C.) 2003 2043 (ON SC), [2003] O.J. no 5469
- The analysis under the three-part test is as follows:
a) Serious questions to be tried
i) The onus rests on the party seeking the injunction;
ii) The threshold is a low one;
iii) A judge should not engage in an extensive review of the merits; a prolonged examination of the merits is generally neither necessary nor desirable; the Court’s inquiry should be on whether there appear to be valid issues raised;
iv) The measure is whether the application is vexatious and/or frivolous.
-RJR MacDonald Inc. v. Canada (A.G.) op. cit.
-Berry v. Berry op. cit.
-Ontario v. Shehrazao Non Profit Housing Inc 2007 ONCA 267, [2007] O.J. no 1388 (Ont.C.A.)
-Asa v. University Health Network [2015] O.J. no 4504
b) IRREPARABLE HARM
i) The onus rests on the party seeking the injunction.
ii) The issue to be decided is whether a refusal to grant relief could so adversely affect the child’s interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application.
iii) Irreparable harm has not been given a definition of universal application; its meaning takes the shape in the context of each particular case; in cases involving children’s best interests, the analysis is whether the granting of the injunction or denial would better serve, or cause less harm to the child’s interests.
-Mudry v. Danisch [2014] O.J. no. 3419
-Lefebvre v. Lefebvre 2002 17966 (ON CA), [2002] O.J. no 4885
c) BALANCE OF CONVENIENCE
i) The onus rests on the party seeking the injunction.
ii) In cases revolving around a child’s best interests, irreparable harm and the balance of convenience are inextricably linked and distils into an analysis of whether the stay’s issuance or denial would better serve or cause less harm to the child’s interests.
-A.G. v. J. B. [2008] A.J. no 148
DISCUSSION
A) ISSUANCE OF AN ORDER TO ENFORCE THE BOARD’S DECISION
[29] As explained by the Court at the hearing of these motions, section 19(1) of the Statutory Powers Procedure Act is such that the filing of a certified copy of the Board’s decision with the Court makes it enforceable.
[30] There is no basis and/or need to issue the order to enforce sought by the D.V.s.
B) TEMPORARY ORDER TO STAY BOARD’S DECISION
[31] Applying the relevant principles, the Court provides the following analysis:
a) Serious question to be tried
[32] The Society has raised a number of issues in its Notice of Application filed with the Divisional Court.
[33] These revolve around both the fairness of the process which led to the Board’s decision and the substance of the decision.
[34] Unfortunately, the Court does not have the benefit of the Board’s reasons. There is no indication as to when those reasons will be released.
[35] In the absence of such reasons, it is impossible for the Court to assess whether the issues raised by the Society in relation to the substance of the decision raise serious questions.
[36] While the threshold is a low one and the Court is not to engage on an extensive review of the merits, this exercise cannot be done in a vacuum. Reasons are needed to properly assess whether the issues raised as to the substance of the decision are valid.
[37] There is certainly an element of urgency in this matter. The Board directed the immediate removal of this child from the environment he has been in since May 22, 2014.
[38] The urgency raised in such matters is reflected in some of the regulations prescribed under the Child and Family Services Act. For example, section 56.1(4) of Regulation 70 provides as follows:
-56.1(4) A decision and reasons under subsection 144(11) of the Act shall be sent to the parties no later than 10 days after the end of a hearing.
[39] While the Board’s reasons are necessary to assess merit as to substances of the decision, they are not required to assess whether serious questions are raised in regards to the fairness of the process which led to the Board’s decision.
[40] The Court finds that the cumulative effect of the concerns raised by the Society in its Application as to procedural fairness meets the low threshold. There appears to be valid issues raised by the Society. The concerns raised are not seen as vexatious and/or frivolous. The Court notes the following:
Manner in which the Board’s chairperson questioned the child protection worker;
The worker being subjected to extensive cross-examination by the chairperson;
The chairperson being described as “sarcastic” with this witness;
The chairperson “sighing” and looking up towards the ceiling while questioning the witness;
Refusing to allow the Society to call a witness;
The Board calling its own witness.
[41] The Court’s task is not to decide the issue of whether the process was unfair to the Society. The point is that the concerns raised are such as to support the Society’s proposition that the issue of procedural fairness is valid.
[42] As already stated, the Court does not have the benefit of the Board’s reasons as to why this young child should be removed immediately from his familiar surroundings. The evidence before the Court is that the child has developed a strong and healthy attachment to his present caregivers. He has had no contact with the V.D. family since March 2015.
[43] When one considers that the paramount purpose of the proceedings this child has been subjected to since his birth is to promote his best interests, protection and well-being, at a minimum, the immediate removal raises a serious question deserving of review.
[44] Therefore, the Court finds that the Society has met its onus and established that there are serious questions raised by this application.
b) IRREPARABLE HARM
[45] The Court finds that there is potential significant risk of harm to this young child if he is removed immediately as directed by the Board.
[46] The Court finds that in the context of the uncertainties associated with this matter being subject of further litigation before the Divisional Court, the granting of the stay until completion in February 2016, will cause less harm to the child. This conclusion is based on the following considerations:
The child has resided in foster care with the C.s since May 22, 2015;
The child was removed from the V.D. home on May 22, 2015 and their last contact was in March 2015;
The evidence before the Court is that the child has developed a strong and healthy attachment with his present foster family;
The importance of continuity in a child’s care and the possible effect on the child of disruption of that continuity.
[47] The Court therefore finds that the Society has established that the risk associated with the immediate removal of the child outweighs the risk of harm associated with the granting of a stay.
c) BALANCE OF CONVENIENCE
[48] For the reasons already noted by the Court, the finding is that the balance of convenience which revolves around this young child’s best interests, protection and well-being, favour the granting of the order sought by the Society.
CONCLUSION
[49] For the reasons articulated in this ruling, the Court makes the following temporary order:
The decision of the Child and Family Review Board dated August 28, 2015 with respect to Board Files CA14-0255 and CA14-0263, is stayed until the application for judicial review in Divisional Court File Number 15-DC-2144 has been decided.
Justice Ronald Laliberté Jr.
Released: September 9, 2015
Child and Family Services Review Board, 2015 ONSC 5617
DIVISIONAL COURT FILE NO.: 15-DC-2144
DATE: 2015/09/09
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Justice Ronald Laliberté Jr.
BETWEEN:
The Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry
Applicant
– and –
S.V.D., M.V.D., C.C., G.C. and Child and Family Services Review Board
Respondent
Ruling on motion to stay THE CHILD AND fAMILY SERVICES REVIEW board’s decision pending judicial review
Released: September 9, 2015