CITATION: Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry v. S.V.D., 2016 ONSC 350
DIVISIONAL COURT FILE NOs.: 15-DC-2144; 15- 2154
DATE: 20160120
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Kruzick, Swinton, and V.J. Mackinnon JJ.
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
BETWEEN:
The Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry
Applicant
– and –
S.V.D. and M.V.D., C.C. and G.C., and Child and Family Services Review Board
Respondents
AND BETWEEN:
C.C. and G.C.
Applicants
– and –
S.V.D. and M.V.D., The Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry and Child and Family Services Review Board
Respondents
Peter E. Chisholm, for the Applicant
S.V.D. and M.V.D., appearing in person
Ross Stewart, for C.C. and G.C.
Margaret Leighton and Brian A. Blumenthal, for the Child and Family Services Review Board
Ross Stewart, for the Applicants
Peter E. Chisholm, for the CAS
S.V.D. and M.V.D., appearing in person
Margaret Leighton and Brian A. Blumenthal, for the Child and Family Services Review Board
HEARD in Ottawa: November 10, 2015
V.J. Mackinnon J.:
Nature of Proceedings
[1] There are two applications for judicial review of decisions of the Child and Family Services Review Board (“the Board”) before the court. Both are in respect of the adoption of C.R. (DOB: […], 2013). The Board sat, pursuant to s. 144 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”), in review of two decisions made by the Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry (“the Society”), namely:
(1) its decision to deny the application of Mr. and Ms. V.D. to adopt C.R.;
(2) its decision to terminate the adoption probation placement of C.R. with Mr. and Ms. C.
[2] The Board rescinded the decision refusing the application of Mr. and Ms. V.D. and confirmed the decision to terminate the adoption placement with Mr. and Ms. C. The Board went on to order that C.R. be placed immediately with Mr. and Ms. V.D. for adoption.
[3] Both applicants, the Society and Mr. and Mrs. C., request an order in the nature of certiorari quashing the decision of the Board and reinstating the Society’s decision to place C.R. for adoption with Mr. and Ms. C.
[4] In the alternative, Mr. and Ms. C. request an order of certiorari with mandamus in aid, directing the Board to undertake a new hearing of both s. 144 applications before a newly constituted and different panel.
[5] The Society also requests an order preventing the Board from reconvening the hearing of Mr. and Ms. V.D.’s application.
Background
[6] In 2011 the Society approved Mr. and Ms. V.D. as a foster home “with a view to adopt”, should a child be presented to them who was legally free for adoption.
[7] C.R. was born on […], 2013 at 30 weeks’ gestation. He weighed 838 grams (1.8 lbs). He was hospitalized for approximately six weeks after birth. On August 17, 2013, while he was still in hospital, the Society apprehended him. Two days later he was placed in the V.D. foster home.
[8] C.R. has a relatively complex medical and health history, including hypospadias, bronchiolitis, bronchial asthma and failure to thrive. He has also been diagnosed with a slow growth velocity and has had difficulty with feeding, which necessitated the insertion of a nasogastric tube and, later, a gastrostomy feeding tube.
[9] In May 2014 the Society received a concerning report from a nurse at the Children’s Hospital of Eastern Ontario’s (“CHEO’s”) neonatal unit regarding C.R. The nurse expressed a variety of serious concerns with respect to C.R.’s health care, feeding and medication in the V.D. home, including an absence of protein in his diet and too few calories. The Society removed the baby from the V.D.s’ care on May 22 and placed him in the foster home of Mr. and Ms. C.
[10] Mr. and Ms. V.D. asked the Society to review its decision to remove C.R. from their home. The Society did so, and as a result of other medical information received, agreed to return C.R. to the V.D.s’ foster home. There were conditions to the return, namely that Mr. and Ms. V.D. agree to work in partnership with the Society and to follow the recommendations made by the medical professionals and the Society.
[11] The return was set for June 30, 2014. It did not occur because the V.D.s would not take C.R. home unless he was first seen by a medical professional. The Society, as C.R.’s legal guardian, disagreed that he needed to see a doctor that day; he had been seen recently and was to be seen again soon. The Society returned C.R. to the C.s’ foster home, where he continued to reside to the date of the Board’s decision at the end of August 2015.
[12] On July 3, 2014 the Society informed Mr. and Ms. V.D. it was closing their home as a foster home. In August the V.D.s applied under s. 68(5) of the CFSA for a review of that decision. The Board heard that review with the s. 144 applications, “given the overlapping facts and issues”, but indicated that it would issue separate reasons with respect to it.
[13] On July 16, 2014 C.R. was found to be in need of protection and made a Crown ward. No appeal was taken. When the 30-day appeal period expired, C.R. was legally free for adoption. On October 22, 2014 the child was placed on adoption probation with Mr. and Ms. C. pursuant to a signed agreement. On October 23 the V.D.s applied to adopt the child.
[14] A new home study of Mr. and Ms. V.D. done by the Society recommended that their application to adopt this child be denied. On November 3 the V.D.s applied to the Board under s. 144 of the CFSA for a review of the Society’s decision to deny their adoption application. On November 6 the Society informed the C.s it was terminating their adoption placement as a result of the V.D.s’ s.144 application. Mr. and Ms. C. then applied to the Board under s. 144 of the CFSA for a review of that decision.
The Statutory Framework
[15] Section 144 provides a mechanism for review by the Board of the decision of a Society to refuse an application to adopt a particular child or to remove a child who has been placed for adoption. Both the V.D.s and the C.s brought applications for review. Subsection 144(11) provides that the Board, in deciding such applications, shall determine the action that is in the best interests of the child. Subsection 136(2) specifies the criteria to be considered in determining the best interests of the child, stating:
Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:
The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child’s physical, mental and emotional level of development.
The child’s cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.
The child’s relationships by blood or through an adoption order.
The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.
The child’s views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
Any other relevant circumstance.
[16] A hearing of both s.144 applications was held over 28 days between January 20 and August 24, 2015. On January 28, 2015 the Society brought a motion seeking recusal of the panel on the grounds of reasonable apprehension of bias on the part of the Chair. The Board dismissed the motion with brief oral reasons. Its detailed reasons were released together with those for the two s.144 applications, on September 21, 2015 (“the Reasons”).
[17] Both applications for judicial review are based on submissions that the conduct of the hearing by the Board gave rise to a reasonable apprehension of bias, and that the decisions made by the Board were unreasonable.
Standard of Review
[18] The standard of review with respect to the merits of the Board’s decision is reasonableness: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9, at paras. 47, 49 & 55-56; CAS of the United Counties of Stormont, Dundas and Glengarry v. J. (A.), [2014] O.J. No. 2217 (Div. Ct.), at para. 13.
[19] There is no standard of review analysis for issues of procedural fairness including allegations of reasonable apprehension of bias. Rather the issue is whether the duty of procedural fairness has been met: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 43; London (City) v. Ayerswood Development Corp., 2002 3225 (ON CA), [2002] O.J. No. 4859 (C.A.), at para. 10.
Reasonable Apprehension of Bias
The Test
[20] The test for reasonable apprehension of bias is set out in Committee for Justice & Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, at p. 394, as follows:
[The] test is ‘what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
[21] In determining whether a reasonable apprehension of bias has arisen, the hearing record must be assessed in its totality, rather than assessing the specific conduct complained of as isolated occurrences. The threshold for finding a reasonable apprehension of bias is extremely high. There is a strong presumption in favour of the impartiality of the trier of fact. See Lloyd v. Bush, 2012 ONCA 349, 110 O.R. (3d) 781, at para. 23. The question of reasonable apprehension of bias requires a highly fact-specific inquiry.
Positions of the Parties
[22] The Society submits that the Chair compromised the appearance of fairness by questioning Society witnesses in a manner akin to cross-examination. The Society also relies on the Board’s refusal to allow it to call a witness or to examine another witness on an important area, and the Board’s calling and manner of questioning its own witness at the hearing.
[23] Mr. and Ms. C. submit that the Chair’s questioning of Mr. C. went beyond intervening to clarify or expand on unclear or incomplete evidence. They submit she questioned him as would a litigant adverse in interest, including attacking his credibility. They also say her questioning of other witnesses gave rise to a reasonable apprehension of bias.
[24] Mr. and Ms. V.D. submit that the Board conducted itself in a manner that respected the duty of fairness. They were self-represented and submit that their limited cross-examination skills meant that the Board had to participate to the extent it did, failing which the hearing would have taken longer and/or the Board would not have had all the pertinent information it required to reach its decision.
[25] The Board submits that interventions in a witness’s evidence are not in and of themselves reflective of bias. Because the best interests of the child were paramount, the Board’s primary duty of fairness was to the child, not to the parents. The Board submits it is entitled to control its own process, and this includes limiting a party’s ability to conduct an examination or call a witness.
[26] Finally, the Board submits the Society and Mr. and Ms. C. have waived their entitlement to raise the issue of apprehension bias by failing to object at the “earliest practicable opportunity”.
Discussion of the Issue
[27] The Ontario Court of Appeal recently considered the issue of reasonable apprehension of bias in Clayson-Martin v. Martin, 2015 ONCA 596, 127 O.R. (3d) 1. Clayson-Martin had been a 20-day long, difficult, high-conflict custody trial where, the Court of Appeal stated at para. 74, “emotions ran high and the consequences for the parties were enormous.” The Court also acknowledged the difficulty of such a trial for a trial judge is “enhanced where one party is, as here, self-represented.”
[28] The Court of Appeal based its conclusion of reasonable apprehension of bias on several factors. The trial judge had treated the evidence of the parties unevenly. He had rejected independent evidence corroborative of the mother’s version of a key event, and was dismissive of other evidence supportive of her version of the event. The trial judge had failed to advert to important evidence supporting the mother’s account. The Court of Appeal also found the trial judge’s comparative credibility analysis was uneven between the parties. His treatment of the mother’s evidence was said to have been troubling when contrasted with his generosity in treating inconsistencies in the father’s evidence. The Court of Appeal also found that the trial judge stepped out of his role as independent arbiter and became an advocate for the father. This was demonstrated in his examination of certain witnesses, during which he appeared to make negative findings of credibility against the mother and to put those findings to other witnesses by way of cross-examination. At other times he appeared to be questioning witnesses to fill holes in the father’s testimony. The Court also observed that the trial judge appeared to already favour the husband’s version of events over the wife’s in the course of questioning witnesses.
[29] I have concluded by reference to these same considerations that the applicants have demonstrated a reasonable apprehension of bias against them in the conduct of and participation by the Board in these proceedings, in particular because of the uneven treatment of the foster families by the Board, but also because of the Chair’s treatment of certain witnesses.
Uneven Treatment of the Foster Families by the Board
Spousal Relationship
[30] The Board had exclusively positive things to say about the V.D.s. It described their relationship and foster home in the following terms (Reasons at paras. 88-89):
• have “a stable, loving relationship”;
• are “a successful parenting team who complement one another”;
• have “a supportive extended family with whom they are close and who have strong bonds with their children and the children whom they have fostered”;
• have “a positive, comfortable and supportive relationship”;
• “Presented as respectful, thoughtful, confident, committed and caring individuals”; and
• Were “consistently credible…in their commitment to the child while he was in their care”.
[31] With respect to the C.s the Board notes they have been married for 28 years and have four children. The Board focuses at length on domestic conflict between the couple which occurred during the mid-eighties to early nineties and on a brief separation occurring in 2002. The Board notes that three of their four children have or have had mental health issues.
[32] The Board’s Reasons did not refer to the description of the C.s contained in a 2013 home study, as being a very close couple who make a great team or to the comment in the same home study that Ms. C. had done a remarkable job raising their four children who were doing well and were all contributing to society. Nor did the Board advert to the positive aspects contained in the current report of the witness Ms. B., which report the Board preferred and accepted in other respects, where it notes:
• “This family has gained much knowledge about working with children that have special needs and have responded well to their training and developed insight.”
• “[Mr. and Ms. C.] take care of the household as a unified team and when their own children return home, they also contribute to the running of the home.”
• “They have four biological children who also support their interests to adopt [C.R.] and have come to love him very much.”
• “[Mr. and Ms. C.] rarely have an opportunity to visit with their extended family due to the distance between them; however this has not prevented them from raising four children to adulthood; all of whom are productive members of society.”
[33] Nor did the Board advert to the evidence it received to the effect that the C.s have worked out their former marital issues, have a solid connection with each other, have demonstrated that they are truly committed to each other, and now have infrequent arguments which remain at the verbal level.
[34] In this way the Board’s Reasons reflect an uneven assessment of the evidence before it touching on the spousal relationships of the sets of foster parents.
Childhood and Young Adult History
[35] Ms. V.D. reported growing up with a distant father whom she described as detached from the family. She described him as being verbally abusive. She said she grew up feeling very angry and resentful towards her father. Nor did she think her parents had presented a very good model of a relationship.
[36] She also described her decision nineteen years ago at age eighteen to elope with an older man, who was controlling, abusive, and an addict. She said she had started using marijuana in high school, and continued to use it for two years. While she was with her first husband, she also experimented with crack cocaine. Ms. V.D. said she left this relationship after several months, but returned on learning she was pregnant, and remained until shortly after the baby was born.
[37] Ms. V.D.’s cross-examination also touched on her mental health in 2010 when she was feeling overwhelmed, was diagnosed as depressed and prescribed medication. However, Ms. V.D. did not accept the medical opinion or take the medication. Rather, she handled her situation in her own way.
[38] Not surprisingly, the Board did not question her or refer to any of this dated information in its Reasons. I refer to it by way of contrast to the attention paid to equally dated events in the lives of Mr. and Ms. C. by the Board in its Reasons and by the Chair in her detailed questioning of Mr. C.
[39] The Board did focus in some detail on the childhood abuse experienced by both Mr. and Ms. C., at paras. 120 and 121 in its Reasons. It found that both of the C.s “ha[d] been significantly damaged by their early childhood experiences”, and were “both vulnerable emotionally and physically” (para. 141). And at para. 158: “The Society’s reasoning for approving [the C.s] as adoptive parents for the child were found to be similarly flawed in that they failed to take into account…the scope of the emotional trauma in the lives of both [of them] and its continued impact on them…”.
[40] Undoubtedly each of the C.s had a significantly more difficult upbringing than had Ms. V.D., perhaps meriting unequal mention in the Board’s Reasons. What makes this “unequal treatment” in the Clayson-Martin sense is that the Board ignores issues in Ms. V.D.’s upbringing and young adulthood while recounting those of the C.s, speculating as to their impact on the C.s’ present circumstances, and relying on speculation in assessing the Society’s decision to approve them as adoptive parents (which was not a decision under review). Moreover, the Board does so without factoring in the evidence it had received as to how and to what extent both Mr. and Ms. C. had addressed their childhood issues. For example, the Society worker Ms. M. described them as resilient, as having created a life for their own children which they themselves had not experienced, and said that they have both received the help they needed. The clinical social worker who had assisted both the C.s described Ms. C.’s mental health as “remarkably changed”. She noted that Mr. C’s mental well-being can be impacted by his physical health, but supported his adoption application provided adequate supports were in place. The Board fails to avert to the 2013 Society worker’s finding that the C.s’ past experiences had been overcome and actually made them strong candidates for fostering because of their experience in dealing with a variety of issues.
[41] The Board’s treatment of problematic issues in Mr. C.’s young adulthood was markedly different from that of Ms. V.D., granted Mr. C.’s were more extensive. Beginning on p. 4107 of Vol. 21 of the Transcript, the Chair asks Mr. C. a series of questions in reference to questionnaires he and Ms. C. had filled out in 2012 as part of the 2013 SAFE assessment. In the first questionnaire both C.s checked off ‘no’ to prior separation, despite having briefly separated for a short time in 2002. Ms. C. said she left with the children for the summer, and spent it visiting both of their extended families. Mr. C. said the house was “gutted” and she had left for a few days. Both did however check off ‘yes’ when asked whether they had gone through a difficult period that threatened their relationship. In addition, in these 2012 questionnaires, Mr. C. admitted to his past use of alcohol and drugs, and his 2 criminal convictions (not related to violence) in the 1980s. Ms. C. also checked off that ‘yes’, once her husband had hurt her physically. They both disclosed, in detail, their physical and psychological medical history. The Chair’s scepticism is apparent in the following examples of questions she put to Mr. C.:
Q 620. So you’re saying you forgot that you have a separation with your spouse and your children?
Q 627. So, if you’re aware that you had struck your wife, why did you not answer that there was domestic violence?
Q 632. Again, I’m not interested in your ability to deal with violent people. I’m interested in your ability to deal with your own violence. So, what you did to learn skills or methods to deal with your own anger, what did you do about that? So you said you spoke with your doctor?
Q 638. Now, on Questionnaire II, again in section 2 of that questionnaire, it asks, have any of the issues listed below ever presented a problem for you or your spouse. And one of the section[s] is controlling temper and you did not indicate that this was a problem for you. Why would that be?
A. At the time, it wasn’t a problem.
Q 639. No, it says was it ever a problem for you to control your temper. They’re asking you this in 2012?
A. Yeah. Again, I have no idea why I would have said that. We’ve had many conversations with Children’s Aid where I’ve told them.
Q 640. Well, that’s not my question. …
Q 653. When did you stop drinking? Or did you ever actually completely stop?
(pp. 4107, 4109, 4111-13 and 4117, Vol. 21, Transcript)
[42] These questions must be read in the context that the physical misconduct to his spouse and his abuse of alcohol took place some 24 years before, the brief separation had been 11 years earlier, and the current evidence was uniform that there was no violence in the marriage, and that alcohol consumption was not a concern. These questions are all in the nature of cross- examination. The suggestion the Chair made to Mr. C. that he is a violent person is particularly egregious having regard to the slim evidentiary record that was before the Board of physical violence. It has no place in the questioning of a party by an independent and impartial adjudicator.
The Board’s Examination of Mr. C.
[43] The V.D.s’ cross-examination of Mr. C. occupied approximately one day spread over June 25 and 26. It was lengthy, detailed and broad-ranging. At its conclusion the Chair asked Mr. C. questions which occupy 42 pages in the transcript. These questions were not by way of clarification or to expand on his evidence already given. Rather, the Chair’s questions delved into new areas, including details of past issues with anxiety, whether he had ever sought counselling for anger management, whether he had a learning disability, whether he had disclosed his past drug use to his wife, whether their daughter planned on having children, and whether he had complained about a Society worker, Ms. B. Many questions were in the nature of cross-examination and displayed scepticism towards Mr. C.’s testimony. Unfortunately during the course of this questioning the Chair appears to have assumed the role of a litigant, adverse in interest to Mr. C.
[44] In addition to the questions set out in paragraph 40 above, many questions challenged Mr. C. as to what he had and had not included in the current SAFE questionnaire. It is clear that both Mr. and Ms. C. thought the SAFE update questionnaire completed in 2014 was to update events since their last SAFE assessment in 2013. They both left out reference to some well-known facts, events or issues they had previously disclosed in assessment but that had not changed or re-occurred in the intervening period. The Chair herself notes that the update questionnaire is to address “what has happened since your last assessment” (p. 4131, Vol. 21, Transcript).
[45] Nonetheless the Chair put the following questions to Mr. C.:
Q 709. …So, the first question asked if you – and we’ll just ask for the questions about yourself. If you have experienced any of the following, so in the last year and a half, and it mentioned poor health and you didn’t cross that. Can you explain to me why you didn’t –
A. Cross it out?
Q 710. – answer that you had a health problem during that year and a half?
A. My health hadn’t changed.
Q 711. But did you experience poor health during that period?
A. But they said only when there was changes. And there hasn’t been any changes in my health. …
Q 714. …You went to some extent in telling us that you wake, you’re back to sleep, you wake, you’re back to sleep, you wake, you’re back to sleep because of your back problems. So why didn’t you indicate that you had sleeping difficulties?
A. Because when we were given these questionnaires, I asked specifically, is this – so basically I just fill out exactly what I did last time. And [Ms. B.] said, no, only things that are different. If it hasn’t changed, you’re not going to change your answer. …
Q 715. So, in your Questionnaire I then from 2012, at section 57, it asks you, have you or a family member had any of the following conditions, and where it lists insomnia, you didn’t also put it in there?
A. I don’t suffer from insomnia.
Q 716. So, back to the update at section no. 8, it asks have you or your spouse used or taken any…tranquilizers or antidepressants and you didn’t complete that box. Why?
A. Again, I was under the impression that we were only adding the changes that were there. And since I guess I was on the prescription beforehand, there was no reason to change it. …
(pp. 4131-33, Vol. 21, Transcript)
[46] The Board’s loss of neutrality is particularly evident in its questioning of Mr. C. with respect to an incident involving a former foster child and how that incident related to Mr. C.’s answer on the same 2014 questionnaire that there had not been any “serious conflict” between him and anyone else in the household. What I will describe as a “water fight” had taken place between Mr. C. and the youth while they were doing the dishes. Mr. C. was asked by the Chair whether he didn’t regard this incident as a serious conflict. He answered her, “There was no actual incident of, you know, what I would think of as a serious conflict. It was we stopped it before we got to a serious conflict.” The Chair posed these questions to Mr. C. in what appears to be an effort to have him change this answer:
Q 721. What did he say to you?
Q 722. Like what did he threaten you to – that he would do, without the exact words. That’s not important.
Q 723. So he was threatening you and your family members?
Q 724. What did he threaten to do to your family?
Q 725. To punch everybody?
Q 727. And you being this afraid for your family to the point that you’re calling the police, would you not describe that as a serious conflict?
A. There was no physical confrontation.
Q 728. No, I didn’t ask you about physical –
(pp. 4135-36, Vol. 21, Transcript)
[47] Mr. C. had described the incident as roughhousing. The Board challenged Mr. C. on his description of what had occurred as follows. At pp. 4136-37 of Vol. 21 of the Transcript:
BY THE CHAIR:
Q 729. Now, we’ve heard you say that it was roughhousing and it didn’t get physical and it was nothing serious, but we’ve heard from a number of other witnesses, we’ve heard from [Ms. P.] that you actually put his head under the water. So, how do you explain that so many people describe the incident one way and you describe it another way?
A. There’s no way [Ms. P.] even knew of the incident. She was not our case worker. … [I]t was never said that I dunked anyone’s head in the water. …
[48] In fact, Ms. P. was not present during the incident. She testified based on what she had heard, read or been told. From her sources she could not say if the youth’s face was under the running tap or whether his face was in the water in the sink. The important point is that Ms. P. did not have any direct evidence to provide the Board. Nor were there a “number of other witnesses” who had actually witnessed the event.
[49] In its Reasons the Board erroneously finds at para. 126, “[Mr. C.] did not deny that he had done this [“dunked the youth’s head under water in the sink”] and acknowledged that he shouldn’t have”. This is not correct. At Q. 271 (Vol. 20 of the Transcript) he specifically denied that the boy’s head ever went in the water, “never went even close”.
[50] The Board considered this event important, finding it was “consistent with the evidence concerning [Mr. C.’s] anger management issues.” (Reasons, at para. 126)
[51] The record, including the above excerpts, shows the Chair confronted both of the C.s about “discrepancies” in the questionnaires they completed. In its Reasons the Board finds at para. 136, “When confronted with these discrepancies, both [Mr. and Ms. C.] were evasive or presented excuses such as not having read the questions carefully or having misunderstood because of learning disabilities. These disabilities were not mentioned to any of the 3 workers who prepared the home studies.” The Chair having conducted the questioning, the Board then relies on it in reaching adverse findings of credibility against the C.s. Paragraph 136 goes on to say: “The Board found both [Mr. and Ms. C.] to lack credibility when it came to providing information to the Board that would present them in anything less than a perfect perspective even about trivial details or faults that anyone would have no difficulties admitting.”
[52] In my view the words of Lord Greene, M.R., in Yuill v. Yuill, [1945] 1 All E.R. 183 (C.A.), at p. 189, are applicable here:
A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation. It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the judge from what it is when he is being questioned by counsel, particularly when the judge’s examination is, as it was in the present case, prolonged and covers practically the whole of the crucial matters which are in issue.
[53] Moreover the evidence indicates the C.s were forthcoming both to the SAFE assessors and the Board regarding their past histories including health and relationship issues. Both Mr. and Ms. C. disclosed their experience of childhood abuse. Mr. C. admitted to drug and alcohol use in his twenties. They both described a difficult time in their marriage nearly 20 years ago, when he had been abusive toward her and she had left for a short time. They both disclosed their physical and psychological health issues.
Decision to adopt
[54] There is a stark difference in the treatment by the Board of the two foster families about their decision to apply to adopt C.R. In its opening paragraph the Board notes the V.D.s had a clearly stated intention to adopt C.R. The Board does not return to this except to say the V.D.s “continued to pursue adopting the child” after their home was closed as a foster home on July 3. The Board does not examine the contrary evidence that was presented to it on this issue, which calls into question whether the V.D.s did actively pursue adoption of this child after July 3, until October 23 when they made the specific request.
[55] The Society agrees it knew the V.D.s wanted to adopt C.R., but after he was removed from their home on May 22, the V.D.s did not make a formal request to adopt until October 23. The V.D.s were aware that C.R. was going to be made a Crown ward. In their factum they note that in April 2014 they knew he was about eight weeks away from being made a Crown ward for the purpose of adoption.
[56] On June 30 the Society met with the V.D.s. At that time the V.D.s shared their worries about the plan to obtain Crown wardship and then to proceed with adoption. The V.D.s inquired about presenting a kin plan so that C.R. would not have to be adopted and his mother could play a significant role in his life. At that time the Society advised them, and it confirmed in a letter dated July 3, 2014:
We reviewed that our application was for Crown Wardship with adoption as the permanent plan and that we would be exploring family/kin as potential adoptive applicants. We also discussed the possibility of you presenting an adoption plan if there were no such candidates. We suggested that you take some time as a family to review your worries around the permanency planning. We met again at 12:30 p.m. that day, where you confirmed that you understood the Society’s application and would support same.
[57] An internal review of the Society’s decision to close the V.D. home as a foster home was held on July 31, 2014. Ms. V.D. prepared notes for that review in which she states:
[The child] is to be going up for Crown wardship. … [His mother] has continued her visits with [him] and loves him very much. We disagree with the decision for Crown wardship. We even offered to step down as foster parents to become her kin but this was denied in order to continue their application.
This is another clear statement by the V.D.s of a preference against Crown wardship and adoption. It is not consistent with the Board’s finding that they had continued to pursue adopting the child from July 3 forward.
[58] The Society responded verbally to the V.D.s on July 31 and confirmed in a letter dated August 5 that C.R. would not be returned to their care and that should they wish to apply to become adoptive parents in the future, their application would be received and assessed.
[59] The Minutes of the internal review meeting also speak to the issue of the timing of the child’s becoming a Crown ward. The V.D.s were advised that the timing of the Crown wardship application was driven by the legal timeline of being in care for one year.
[60] The V.D.s would obviously have known the length of time the child had been in care. The Society had by now once referred them to their ability to present an adoption plan for C.R. if there were no family candidates, as well as on a second occasion to their ability to apply to adopt another child in future. Despite this information there was no specific request to adopt C.R. made by the V.D.s in July, August or September 2014. They did however launch the s.68 application to the CFSRB by the end of August, seeking review of the closure of their home as a foster home.
[61] Ms. V.D. was cross-examined about this at the hearing. At pp. 5383-84 of Vol. 27 of the Transcript:
BY MR. STEWART:
Q 936. Okay. When do you say, madam, that you came forward, and this is – let’s put this in a time perspective. After you hear from the [internal review], which would be – you’ll recall that you said you would’ve – their reporting letter is about the 5th of August and you said you received it about five days later, so about the 10th or 11th of August you received them. After that date, when do you say you made the next formal step to make it known to the Society that you wish to be considered as an adoptive placement for [the child]?
A. After the – we had told – we had told the [internal review]. In fact, they asked us during the meeting. They said, did you ever apply to adopt [C.R.], and we said, no, we’re – we don’t know what his status is. Is he Crown ward and on the adoption list right now that we can apply. And they said they couldn’t give us that information.
Q 939. Okay. Did you go to the Society and make an application or speak to someone formally about that?
A. We had never been through the process before. We didn’t know how that was. We were – we were under the impression that the workers would let us know how to go through the process just like how the workers let the [C.s] know and how they went through the process. It wasn’t until the CFSRB said to us in one of the conferences, [C.R.] is now a Crown ward and you may apply to adopt and if it’s rejected, they’ll have to answer to us.
[62] The Board did not refer to or consider the evidence suggesting that the V.D.s knew in a fairly specific way the timing of C.R.’s Crown wardship, or whether from July 31 forward, they may well have had enough information to at least suspect the child was a Crown ward and would soon be legally free for adoption. Nor did the Board refer to or consider the information provided to the V.D.s that something more was required of them, namely an adoption application, if they wished to apply to adopt C.R. or any other child. The apparent inconsistency between Ms. V.D’s answers as to what the V.D.s knew, and when, and the written communications from the Society to the V.D.s was not explored by the Board.
[63] The statement attributed to the Board by Ms. V.D. is also problematic. As attributed one could conclude that the Board had apparently encouraged the V.D.s to apply to adopt C.R. and had also provided them an assurance that even if the Society turned them down, the Society would have to answer to the Board itself.
[64] On October 23 Ms. V.D. sent an email to the Society’s Executive Director saying:
We have just learnt that [C.R.] is now a Crown ward.
We would like to meet with you at the earliest convenience to discuss a plan for permanency. Both ourselves as well as another family member who has known [him] would like to put our names forward for adoption. We are also both interested in putting our names forward for [another former foster child], who we’ve learnt is on the adoption list as well. …
In previous emails following the July 31st internal review, the V.D.s asked many questions of the Society: to request a good-bye visit with C.R.; to be considered as a kin placement for another baby; to determine whether if they moved to a different city would they be able to foster there. They did not ask to adopt C.R. The issue of the changeability of or confusion in what the V.D.s were saying to the Society was also explored in chief through the Society’s witness, Ms. L. She met with the V.D.s in her office on October 27 to discuss their wish to present a plan for C.R. as well as for another child whom they had previously fostered. Ms. L. told them that C.R. was already on adoptive placement and not available. Ms. L. testified that during this meeting the V.D.s were discussing several matters: their plan to adopt C.R. and the other child, their applying as kin for this other child, the interest of other of their relatives in proposing themselves as adoptive parents, or perhaps as kin, for one or both of these children, and finally, the possibility of applying as kin for an as yet unborn sibling of the former foster child. At the meeting’s end Ms. L. suggested the V.D.s discuss things overnight and let her know the next day what their focus was going to be.
[65] Another Society witness, Ms. M., had noted the V.D.s were unable to express any clear motivation for wanting to adopt C.R.
[66] The Board is not obliged to refer to all of the evidence or all of the issues raised before it. That said, the cursory reference made to the V.D.s’ intention to adopt C.R. without considering any of the contrary evidence is markedly different from the treatment afforded the C.s on the issue of when they decided they wanted to adopt the child. At pp. 4140-42 of Vol. 21 of the Transcript, for example, the Chair raised this issue with Mr. C:
BY THE CHAIR:
Q 737. Now, in your testimony, I think it was yesterday. During direct you were asked when you decided you wanted to adopt [the child] and you mentioned to us a conversation with the [V.D.s] and they asked you, would you want to adopt him and you said, yes, of course, and that was kind of a trigger for you thinking that you would want to adopt him.
But we also heard from [Ms. P.] when she was testifying that she approached you a number of times, asking you about a plan to adopt [the child]. She told us that she approached you on July 16, so right after the Crown wardship order, and asked you and she testified that your answer that first time was that you needed to discuss it with your wife? Do you recall that?
A. Yes.
Q 738. Yes?
A. I told her yes, without a thought, I would do it. But I couldn’t make a decision for my wife. My wife was in school. I was at the hospital with [the child]. And soon as [my wife] got to the hospital, we discussed it.
Q 740. But you heard the testimony of [Ms. P.], like we did, I’m sure, that she spoke to you again over a month, a month and a half after that … indicating the appeal period was over … and you answered to her that you still had not spoken to your wife and the children about it. Do you recall that?
A. Not exactly like that, no.
A. I recall saying that we needed to discuss it more, but that we were interested. But this was a big step. Everything before that was speculation. …
Q 742. … So you didn’t tell her that you had not discussed it with your wife yet?
A. No, I did not say that.
Q 743. So she’s not telling the truth when she’s saying that?
A. I’m not saying she’s not telling the truth. What I’m saying is maybe she’s misunderstood what I was saying. And for the record, at the beginning of your question, you mentioned the [V.D.s] on the 30th.
Q 744. So, from Ms. [P.’s] testimony we heard that it is finally on September 16 that you confirmed to her you were presenting a plan to adopt [the child]. Is that correct?
A. If that’s what it says in the record, yes.
[67] This line of questioning is akin to cross-examination. The Chair was challenging Mr. C.’s credibility, including to the extent of asking him to comment on the veracity of another witness. The Chair’s questions appear to call into question the timeliness of the C.s’ decision to adopt C.R. In addition to the testimony of Ms. P. the Board had also heard from another Society witness, Ms. A. She had testified that the Society knew in July the C.s would like to be considered as an adoption placement for the child, but that the Society has to wait until the Crown wardship appeal period expires, and then look for a family placement before considering other potential adoptive homes.
[68] It is in the context of that testimony, and knowing as the Board did that C.R. was not legally free for adoption until August 16, 2014, that the Chair’s suggestion to Mr. C. that “finally” on September 16 they confirmed their adoption plan, needs to be considered.
Questioning of Ms. S.D.
[69] A review of the testimony given by the Society’s social worker, Ms. S.D., referred to by the Board as Worker B, reveals several of the problems identified by the Court of Appeal in Clayson-Martin. An important aspect of her testimony related to the Society’s request to the V.D.s to keep food logs pertaining to C.R. and their degree of compliance with this request.
[70] In this respect the Board found at para. 56 in its Reasons:
During the April 17, 2014 meeting, worker B made some suggestions regarding feeding and encouraged [M.V.D. and S.V.D] to try different things. She also provided the Applicants with a form to use to track the child’s intake and output. Neither she nor the Applicants clearly recall her asking them on that date to also track everything the child was being offered as well as what he ate. This issue was a point of contention during the proceedings but was not resolved. [Emphasis added]
And, at para. 105, the Board said:
This request [to maintain food logs] was made initially in April 2014 by worker B, but there was no evidence to suggest that it was clear, detailed and explicit especially with regard to tracking what food the child was being offered as well as what he was ingesting.
[71] These conclusions overlook the testimony given by Ms. S.D. She testified that she clearly recalled having asked the V.D.s to record in the food logs everything that the child ate and everything that he was offered:
MR. V.D.: Did you ask us to put what we offered him?
THE WITNESS: Yes, we did and in some occasions you did indicate. For example, on the 19th, you had “what my kids were eating, porridge with banana homemade” and then a little star “…*failed, maybe one bite…”, which is what we had asked to do, is that you identify the effort made and his response to that so that we could bring this to the doctors to try and help them understand what was going on with regards to [C.R.’s] feeding a weight loss [sic].
MS. V.D.:
Q 1322. Where did you say that you specified? I added that information. But when did you ask us to put in the feeding logs that what he was eating as well as what we were offering?
A. On April 17th when I brought these feeding charts to you and asked you to complete them, that was part of what was asked of you, was to identify all efforts made of and including what his actual intake was so that it could be identified and brought to the doctors so that we could help them to see what his daily intake looked like and be able to help move forward.
Q 1323. You have a very clear recollection of that.
A. Yes, very clear.
(pp. 484-85, Vol. 4, Transcript)
[72] The Board either overlooked or misapprehended another aspect of this witness’s testimony. Ms. S.D. gave the following evidence about the child’s feeding and weight fluctuation after being placed with the C.s:
MR. V.D.: Were you satisfied with his eating when he moved to the [C.s’] house?
THE WITNESS: We saw a significant change. We did still, you know, he had the following week lost 110 grams so that was still of concern to us. However, we did notice significant changes in [his] health after he changed homes. No reports of vomiting, the congestion was much less than what it had been previously, rarely in need of the medication and it was only after 22 days I believe it was, was the first time he had vomited and he was eating solid foods from the very first day he moved to that home in addition to his formula. So we did continue to have concerns about his weight but we were seeing positive changes in terms of his eating but it was still obviously a work in progress in order to get intake high enough for him to start gaining weight.
(pp. 453-54, Vol. 4, Transcript (emphasis added))
[73] The Board refers to this and other evidence, at para. 139 in the Reasons, as follows:
During the course of the proceedings, the Board heard and read inconsistent testimony and evidence regarding how the child was doing in the home of [the C.s] and how well he was eating solid foods. The Society and [the C.s] suggested that he was eating well and gaining weight while in their care. The medical records suggest otherwise. The child lost weight and his condition deteriorated to the point where he required emergency hospitalization and a feeding tube to ensure that he was ingesting sufficient nutrients. (Emphasis added)
[74] This finding overlooks Ms. S.D.’s clear statement that the child was eating solid foods, but had lost weight initially and had not started gaining weight at the C. foster home.
[75] The Reasons reference the child’s “emergency” hospitalization on this and 3 other occasions (paras. 34, 84, and 107). It is accurate to state that C.R. was taken to emergency and was admitted to hospital through the emergency room. But it is overstatement to describe the admission as an emergency. The C.s state that the purpose of the visit was to check if he was dehydrated from the heat wave, on the advice of C.R.’s neonatologist. Their evidence was that testing showed that the child was not dehydrated and his electrolyte levels were normal. Despite this, both Mr. and Mrs. C. testify, CHEO decided to admit him for monitoring, to investigate why he was not gaining weight.
[76] The Board’s characterization of this hospitalization overlooks the evidence of Mr. and Mrs. C., who were the only witnesses present providing testimony to the Board. The Board relies on its characterization of an emergency hospitalization both to support the V.D.s’ position and to call into question the care the C.s provided to the child: it finds at para. 107 that this hospitalization “substantiates” the concerns expressed by the V.D.s on June 30, when they decided not to take the child home unless he was seen by a doctor, and it notes at para. 139 that “[t]he child lost weight and his condition deteriorated to the point where he required emergency hospitalization and a feeding tube to ensure that he was ingesting sufficient nutrients.”
[77] A review of CHEO’s triage and physician records shows the presenting complaint as “Minor Complaints Unspeci[fied]”, in the “General & Minor” complaint category. The CTAS (Canadian Triage and Acuity Scale) rating is initially a 5-N, the lowest (i.e. least urgent) level, but is corrected to a 4-S, the second-lowest level. The child arrives at 3:50 p.m. and is not seen by a physician until 5:40 p.m.
[78] The C.s testified that the feeding tube was not inserted until three or four days later (Q 328, pp. 3938-39, Vol. 20 and Q 231-233, pp. 4220-22, Vol. 22, Transcript). This is consistent with the medical reports: the Discharge Summary states the admission was “for inpatient management of failure to thrive”; the plan as of July 4 was to fortify the child’s formula, weigh him daily, monitor his weights over the weekend, and reassess if no change in weight gain; and the feeding tube is inserted on July 5. Clearly the feeding tube was not inserted on an emergency basis.
[79] The Board made several key findings in its Reasons with respect to feeding matters, culminating at paras. 69 and 70:
• At para. 69 the food guide provided to the V.D.s is quoted; it included this advice on introducing new foods to the baby, “Let your baby guide you. Your baby will tell you he has enough to eat when he turns his head away or keeps his mouth shut.”
• At para. 70: “We are satisfied that the evidence shows that [the V.D.s] were making efforts at feeding solid food to the child and were responding to his behaviour as suggested in these guidelines.”
[80] The Board did not consider whether the V.D.s were offering solids and meats daily and at every meal as had been recommended in January and April. The Board also received detailed testimony from the CHEO neonatal unit nurse that she herself gave Ms. V.D. a detailed summary of what had been discussed, namely starting iron fortified cereals, then one or two green vegetables around six months, and because meats can be hard to accept, mixing meat into the vegetables, the standard being to introduce one new food for two to three days before introducing the next. The Board did not consider whether the V.D.s were in compliance with these instructions. There was evidence that these guidelines were not being followed, including in the food logs that the V.D.s did provide from April showing little to no solid food being offered to C.R. The neonatal nurse testified that based on the information she received from Ms. V.D. the child’s level of food intake was not consistent with the guidelines nor was he being offered the recommended types of food in the recommended manner and frequency. She testified that between January 23 and May 20 the rate of growth of C.R.’s measurements for body length, height and head circumference had all severely decreased.
[81] The Board found that the Society’s decision to remove the child from the V.D. home on May 22 was not in the child’s best interests and that so doing was contrary to the advice of the doctor and nurse who had most recently seen the child on May 20. There was evidence provided to the Board in support of the Society’s decision.
[82] Ms. S.D. referred several times to a telephone call she had with CHEO neonatal nurse Ms. L., in which the nurse relayed several concerns with the care the child was receiving in the V.D. home:
BY MS. V.D.:
Q 934. So I’m not sure that I got a clear answer. Did [Ms. L.] ever say she had – that [the child] should be removed from our home?
A. That’s not her decision to make, but she identified as per my previous answer, [Ms. L.] reported that she recognizes foster parents are far and few between and such amazing people for doing what they are doing, but she has many red flags when it comes to [his] care.
Q 936. …can you just briefly outline what the red flags were?
A. Yeah. The chest physio, that that’s not something that should be done without being properly trained. She expressed getting the impression that you were using your RN background as grounds to do as you wish with [the child’s] care. Concerned about the additional loose fluids could be coming from too many treatments with his Ventolin. Serious concern with the fact that he is not getting any protein in his diet, rarely offered cereal, and very few vegetables and fruits. Medication is being given way too much and she is shocked by it. She doesn’t –
A. …She doesn’t doubt he has feeding issues, but she has concerns about the level of medication he is receiving and also the low level of calories and lack of exposure to foods.
We spoke about the head circumference decreased and she advised due to the fact that he had no brain related traumas at birth or concerns, they questioned inadequate nutrition or too low of calories to cause the head circumference, which was down significantly. …
And then the following is the statements that I previously read, that she advised after the appointment was made she received a phone call from [Ms. V.D.] advising that I, the worker, would be attending as well as birth mom [ ] and that [Ms. V.D.] had advised [Ms. L.] to be cautious about what is said in the appointment.
She expressed concern over the – she being [Ms. L.] – expressed concern over the olive oil in his formula and reports that one should never alter the taste of formula as it is the one thing the child takes well and where the most nutrients are coming from. She often sees this recommendation being made by putting olive oil in food, but never in formula. …
(pp. 356-59, Vol. 3, Transcript)
[83] The Board does not appear to have taken this information into account on the issue of whether the Society had reasonable grounds to remove the child from the V.D. home pending its investigation of the concerns. The nurse verified that she had asked the social worker to call her because of concerns she wanted to relay to her. She agrees she conveyed concerns about the frequency of feeding, what was being offered, inconsistencies she was hearing from Ms. V.D., concerns about her use of medication and chest physiotherapy in her care of the child. She did not and had not intended to convey that her view was the child should be removed from the home, and in fact that was not her view; but, she had in fact communicated all of these concerns to the Society.
[84] The Chair questioned Ms. S.D. directly on January 21, 2015, spanning about 14 pages in the Transcript, beginning at p. 337 of Vol. 2 (question #417) and continuing until p. 351 (question #493). There were many other occasions during Ms. S.D.’s testimony where the Chair entered the fray, in effect cross-examining her. Two primary examples are in relation to her notes and in relation to her demeanour as a witness.
At pp. 212-13 of Vol. 3 of the Transcript.
THE CHAIR: And this is the entirety of the notes you made during that meeting? THE WITNESS: Yes.
THE CHAIR: And you remember telling me the other day when you were testifying that you wrote everything in your case note that was being said?
THE WITNESS: In the doctors appointments.
THE CHAIR: So this was everything that was said in that doctor appointment?
THE WITNESS: There’s a – that one has a – there is a typed case note of that.
THE CHAIR: But that’s the one when you were at the appointment?
THE WITNESS: For the handwritten one and then there is a typed one that reflects all of the information.
THE CHAIR: So when you’re at the appointment, you just jot down notes. So the typed ones are not a transcript of your handwritten notes, it’s what you think you remember with the help of your handwritten notes?
THE WITNESS: Yes.
THE CHAIR: Okay. Thank you. Excuse us for a second.
At pp. 226-28 of Vol. 3 of the Transcript:
BY THE CHAIR:
Q 545. And that you got reports from [Dr. K.], the child’s pediatrician?
A. Concerns from her regarding [the child].
Q 548. Okay. So if I tell you that yesterday [Dr. K.] testified that she did not report concerns, what do you answer to that?
A. Well, on April 17th, she had indicated concern that he was not receiving meat or any cereal because at his age he should be and that he wasn’t on solids.
Q 549. She indicated that to you, that –
A. On April 17.
Q 550. – it was a reportable concern? That she was exercising her duty to report to you?
A. No, she didn’t say that’s her duty to report, but she expressed concern that [the child’s] diet did not contain solids. It was reported by [Mr. V.D.] that he did not get cereal and that he was not receiving meat. And she had identified that because he was premie, that those things were that much more important.
Q 554. Okay. So if you can go back to that case note of the April 17 meeting/doctor appointment that you said she expressed these concerns?
A. Yeah, it’s in the – because I did the typed document right after and it’s there –
Q 555. Yes. No, I would rather you use the one where you were at the meeting, the handwritten one first. So can you point to me where these concerns are listed?
A. That he needed to have feeding as per his age and solids and meat daily. He wasn’t receiving those.
Q 556. It doesn’t say that, does it?
A. No. I did an electronic case note.
[85] These questions are clearly in the nature of cross-examination. The Chair is challenging the witness’s credibility and the reliability of her note-taking. As will be discussed later, a far more generous attitude was extended to the Board’s own witness, Society worker Ms. B. The Board accepted her testimony with respect to the purpose and conclusion reached at a key meeting on October 3, 2014, even though she had not made a single note during the meeting, and did not prepare her typewritten summary of it until October 8. A contrary attitude towards Ms. S.D. is also demonstrated by the following exchanges.
At p. 287-88, Vol. 2 of the Transcript (following question #281):
THE CHAIR: Okay, again –
THE WITNESS: – food.
THE CHAIR: – I’m going to remind you just one more time. And my last time.
THE WITNESS: Sorry.
THE CHAIR: To answer the question. So, do you recall an explanation at the CHEO appointment about treating the child for corrected age?
MR. STEWART: Madam Chair, can I also indicate at this point, one of the concerns I’ve had, these questions are not easy to answer because I’m having difficulty understanding them.
THE CHAIR: Okay.
MR. STEWART: So, in fairness to the witness, I don’t think she’s being obstructionist. I had some significant difficulties with many of the last questions as to –
THE CHAIR: Well, that would be easily corrected if we had all of her case notes. Since we don’t, we’re going to take one recollection at a time and we’re going to go through them like that. So, let’s just keep it to the specific questions, please.
At pp. 245-46 of Vol. 3 of the Transcript:
A. … so it was important that he be receiving meat every day.
THE CHAIR: I’m going to say it again. Did she say he should have been getting meat before or he should looking forward?
THE WITNESS: We didn’t specific timeline [sic], but the response was that he should be getting meat daily.
THE CHAIR: Okay. So you interpreted that as meaning he should have been getting meat.
THE WITNESS: Because there was previous documentation –
THE CHAIR: No, that’s what the question –
THE WITNESS: – that in the past –
THE CHAIR: No, you –
MR. STEWART: Madam Chair, in fairness to the witness –
THE CHAIR: You will stop interrupting me. I will finish my question and she will answer it.
MR. STEWART: I’ve an objection I’d like to make.
THE CHAIR: You will let me finish my question and then you will make your objection.
MR. STEWART: All right.
THE CHAIR: Okay. So, did you interpret her comment as meaning that he should have been getting it before?
THE WITNESS: No, I did not interpret her comment.
THE CHAIR: Okay. Do you still have an objection?
MR. STEWART: I most certainly do.
[86] Counsel went on to submit that there had been almost half an hour of questions from the Chair of which many devolved into cross-examination, and he raised his concern of a lack of impartiality. Subsequent to this objection the following exchange took place.
BY MS. V.D.:
Q 869. During that May 20th visit at CHEO, did I ever say I disagree with any information that Ms. [L.] had provided?
A. You didn’t say the words disagree –
THE CHAIR: Okay, listen –
THE WITNESS: – but you did justify the reasoning.
THE CHAIR: It’s a yes or no. Did –
MR. STEWART: Well –
THE CHAIR: No, let me instruct and I’m getting very close to asking you to instruct your witness who is an employee of the Society to not be evasive and answer the questions. And that is on the record. So, please answer the question that is asked of you. Did she ever say the words “I disagree” with anything that was posed to her at that meeting?
THE WITNESS: She did not use those words, no.
THE CHAIR: Thank you.
Mr. STEWART: Madam Chair, I’m asking –
THE WITNESS: But her body language did –
MR. STEWART: – for an adjournment. I’m asking for a few minutes. I need to seek instructions, if I may.
(p. 319, Vol. 3, Transcript)
[87] There were other occasions where the Chair directed Ms. S.D. what to answer or circumscribed her ability to answer:
At pp. 249-50 of Vol. 3 of the Transcript:
BY MS. V.D.:
Q 648. Right. You had just confirmed that the doctor did not specify that meat should be taken during that day. Okay, when you came to our home on April the 17th following [Dr. K.’s] appointment, we agreed that you had brought up concerns regarding his feeding, correct?
THE CHAIR: Can you answer with yes?
THE WITNESS: Yes.
THE CHAIR: Thank you.
At pp. 329-31 of Vol. 3 of the Transcript:
BY MR. V.D.:
Q 896. [Ms. S.D.], when you made the initial referral on May 22nd about our family, did you indicate that the referral was based on a report from CHEO neonatal unit?
A. It was based on a combination of information that had been coming in over time. So it, yes, there was reference to the information that had come from the neonatal unit, but there was also with regards to information that came about in our meetings with [Dr. K.] or our appointments, as well as a phone call that had come in from the Eastern Ontario Health Unit.
THE CHAIR: So your answer is yes?
THE WITNESS: Yes, because they were included in there, but it was a combination of all the information received –
THE CHAIR: But that’s –
THE WITNESS: – from several different parties.
THE CHAIR: Mr. Stewart, could you repeat the direction, please, to answer the question to your witness? The question is, did you mention that it referred to information from CHEO neonatal. That’s a yes or a no.
MR. STEWART: Well, that was –
THE CHAIR: Can we please keep it to that? This is cross-examination. She’s asked a question. She answers a question.
MR. STEWART: I’m not sure that I can in good conscience give an instruction to a witness as to how –
THE CHAIR: Okay, so I will then.
MR. STEWART: – they can answer it. Well, if I can –
THE CHAIR: No. I asked you to do it and now I’m going –
MR. STEWART: Can I be permitted to finish?
THE CHAIR: No, because you said you will not do it.
MR. STEWART: No, I didn’t say that.
THE CHAIR: Yes, you just did.
MR. STEWART: No, I’m just asking that I’d like to put my point on the record so the record is clear. I will follow all directions of this Tribunal, but I don’t think it’s appropriate, going back to my earlier objection, that the witness’ answers be circumscribed. She may have relevant evidence that goes beyond yes or no that the Board should obtain.
THE CHAIR: Then you should have led it in direct. So, it’s a cross-examination. You’re asked a question. You answer the question that is asked, okay? Thank you. Continue, please.
(Emphasis added)
Not only did the Chair endeavour to restrict the answer to yes or no, she misapprehended both the question put to the witness, and Mr. Stewart’s answer to herself.
At question #1228 (at p. 449 of Vol. 4 of the Transcript):
Q 1228. Okay. Would you say that I was also concerned or the [V.D.s] were also concerned with his nutritional intake? Just yes or no?
A. I don’t feel that is a question I can answer with just a yes or no.
THE CHAIR: Just say you don’t know. Continue.
At question #1265 (at p. 458 of Vol. 4 of the Transcript):
Q 1265. Okay, so the 21st debriefing meeting when you had expressed the importance of the food logs and that it wouldn’t just be yourself looking at them, that the Ministry themselves would be looking at them, did I seem surprised?
THE CHAIR: Do you mean did you look surprised?
MS. V. D.: Did I look surprised?
THE CHAIR: Okay.
THE WITNESS: I can’t just answer that with a yes or no unfortunately because the beginning part of that is not an accurate statement.
THE CHAIR: So, just say I don’t know.
[88] The witness makes a fair comment. Questions put to her were not simple questions. Often they were compound, in that they included more than one question or a premise that underlay the actual question. A witness should not be limited to answer this type of question by a yes, no, or I don’t know answer.
[89] The Board adopted a similar approach with another Society witness, Ms. P. The witness became increasingly reticent in providing answers, and on one occasion asked, “Well – am I allowed to expand on this or I have to say yes or no?” (p. 2015, Vol. 10, Transcript).
[90] On the third day of the proceeding the Society twice alerted the Board of its view that the questioning of Ms. S.D. by the Chair gave rise to a reasonable apprehension of bias against her and the Society. In response to the Society’s second objection on this ground, the Chair responded by reading the contempt section, s. 13(1)(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22—an inappropriate response, as on a fair reading of the Transcript, there is nothing to suggest the witness was being obstructionist. On January 28 the Society brought its formal motion seeking recusal of the panel. The motion was denied that day. The Board provided its ruling and said that written reasons would follow. Those reasons were delivered on September 21, 2015.
[91] When delivered the Board noted that the motion had related to one witness only whereas the Board had gone on to hear a total of 28 days of evidence. The Board said the V.D.s were self-represented and had left critical facts unclear or vague in their cross-examination of Ms. S.D. The Board held that because its task was to determine the child’s best interests, if relevant information was missing the Board was obliged to pursue it.
[92] The Board’s duty to the child does not extend to entering the fray or to abandoning its role as neutral adjudicator of the dispute before it. In Clayson-Martin, at para. 69, the Court of Appeal noted that fairness to the child and to each party presenting evidence will generally overlap:
I note that in custody and access cases in which the best interests of the children are paramount, the fairness owed by the judge is primarily to the child rather than to the parties. That is, since the court’s primary duty is to inquire into the children’s best interests, impartiality to the parents is subservient to that goal. At the same time, where, as here, the court has decided to resolve a factual dispute between the parents in order to determine best interests, fairness to the child and to each party presenting evidence will generally overlap.
[93] There were other options available to the Board. At the conclusion of the V.D.s’ cross-examination, the Board could have assisted the V.D.s by identifying areas on which it lacked clarity, and offered them the opportunity to address those issues by further questions to the witness. The Chair did not have to undertake the extensive questioning that she did, particularly with Ms. S.D. and Mr. C; nor did the V.D.s’ self-representation justify her in so doing. As noted in Clayson-Martin at para. 108:
It is crucial for trial judges to maintain their independence and impartiality throughout; the process depends upon it. When one party is self-represented, balancing trial efficiency and effectiveness with the appearance of independence and impartiality can be truly challenging.
[94] A neutral adjudicator is challenged to meet its fact-finding obligation to the child without losing its appearance of neutrality as between the parties. If after attempting other measures the Board still required clarification on some issues, it ought to have confined itself to short, simple, open-ended questions - as it did with respect to some of the other witnesses heard after S.D.
[95] In its written reasons on the recusal motion the Board described Ms. S.D. as a critical witness and stated in part at para. 173: “Her testimony was critical. The Board could not permit her to be evasive”. In fact, a fair reading of the transcript shows that Ms. S.D. was not trying to be evasive. With these words, the Board confirms what had appeared to be the situation to the Society during the hearing, namely the appearance that the Board had adopted an adverse attitude towards this witness in the course of the Chair’s questioning of her.
The Safe Home Study Assessments and the Assessors’ Evidence
[96] An important factor in the Society’s decision to place C.R. for adoption with the C.s was the SAFE assessment done with respect to their application. The Society also conducted a SAFE assessment of the V.D.s which was relied on in refusing their application to adopt C.R. The Board’s Reasons show that it misapprehended the evidence of the two SAFE assessors, Ms. B. and Ms. M. (Workers “D” and “E”, respectively, in the Reasons). Moreover, the number of misapprehensions and their cumulative effect contribute to a finding of reasonable apprehension of bias against the Society and the C.s, particularly in light of the Board’s interventions in Mr. C.’s testimony and its findings with respect to the C.s’ credibility.
[97] Ms. B. was initially assigned to complete the SAFE update study for the C.s. This was the first such report she had prepared. She received the assignment on September 17. Her supervisor asked her to complete it in seven days. Ms. B. had not submitted her report when on October 3 a meeting was held, which she attended. The purpose of and conclusion reached at the meeting were in issue.
[98] Underlying the Board’s Reasons is the implication that Ms. B. was assigned to do the C.s’ SAFE update, that she did complete it, but that the Society, despite her recommendation against approving the C.s’ adoption plan, and having already decided to approve the C.s, assigned Ms. M. to quickly do a second update in the hopes it would be favourable.
[99] The Board called Ms. B as a witness. It accepted Ms. B.’s testimony but without a full consideration of the relevant evidence on both sides of the issue. A primary reason the Board gives for accepting Ms. B.’s testimony over that of her supervisor is provided at paras. 130-131:
130 … Worker D also testified that, as she indicated in her report, the Society had already made a decision to approve [the C.s’] adoption plan during a meeting held on October 3, 2014.
131 The service director denied this during her testimony. She did not produce any documentation to support her position contrary to worker D who had documented the discussion.
[100] Ms. B. testified that the purpose of the meeting on October 3 was to determine if her update would be approved. This is what she wrote in the summary of the meeting she prepared five days later, on October 8. In fact, her update report had not even been submitted to her supervisor until after the meeting was over.
[101] The Board does not address the fact that Ms. B. did not make notes during the meeting on October 3, but rather prepared a typed record of it from memory, five days later. Nor does the Board address the fact that in cross-examination Ms. B. agreed that her typed note was inaccurate as to the purpose of the meeting, or go on to consider, whether if her note was inaccurate in this respect, it might also contain other inaccuracies. Following a series of questions challenging the accuracy of the typed note in this respect, the admission was made.
BY MR. STEWART:
Q 2565. So your choice of words in your note, when you say the meeting was about whether the SAFE home study update would be approved, that’s not accurate, is it?
A. No, it would be – yes, that’s correct.
(p. 3482, Vol. 18)
[102] The Board did not refer to the supervisor’s explanation that the meeting was held to reconcile the positive reports of the C.s’ child and family worker (Ms. P.) with the concerns Ms. B. was raising. The supervisor said she “needed a clearer picture before we could move forward with completing the SAFE assessment” (Q. 54, pp. 3619, Vol. 18).
[103] Ms. L. was adamant that the meeting was not about approving the update:
Absolutely not. The update was not completed. There were still questions. And we do not make a clinical decision in supervision in a group setting. That would’ve been between [Ms. B.] and I to go back after this meeting and say, okay, let’s look at the balance of information, this is what we have, now let’s discuss and go through everything and then we make a decision. Staff completing the assessment and the supervisor. Not in a group setting like this, ever. (Q. 56, p. 3619, Vol. 18)
[104] The supervisor testified that she gave Ms. B. three tasks to follow up on. These are listed in Ms. B.’s typed note as “recommendations [to] be made in support of the update”. The supervisor’s evidence was that in her view the report was incomplete because these three tasks had not been undertaken. The Board overlooks this evidence and finds, at para. 129, “On the face of the report, it is clearly visible that it was completed and submitted for approval to the supervisor on October 10, 2014, contrary to the Society’s assertions that it was not completed because the worker went on sick leave.” The report was actually submitted late in the day on October 3. Ms. B. was not at work from October 6 to 10 on a planned vacation, during which time she became ill. The week of her anticipated return, Ms. B. texted her supervisor advising she would not be in for the remainder of the week, without providing any specific return date. The supervisor’s evidence was that she did not know when Ms. B. would be back, that the SAFE update had already been delayed and needed to be completed, and for these reasons she re-assigned the file to Ms. M. to do so.
[105] The supervisor allocated seven days to Ms. M. to complete the work. The Board appears critical in its observation that Ms. M. did complete her work and it was approved by her supervisor “in less than a week”; in actuality, in six days.
[106] The Board clearly prefers the testimony and the update by Ms. B. over Ms. M.’s testimony and the update she completed, which was approved by the supervisor. At para. 133 of the Reasons, it states “the Board found [Ms. B.] knowledgeable and able to articulate very clearly her clinical analysis of the facts she gathered as part of her assessment.” It states but does not address the Society’s concern that Ms. B. did not mitigate her ratings on historical factors.
[107] The Board also finds that Ms. M.’s SAFE update of the C.s “had serious flaws” (para. 135).
[108] Ms. B. was called as the Board’s own witness. Her testimony was given on May 22 and 23, 2015. In an unusual step the Chair conducted the examination in chief of Ms. B. before turning her over to be questioned by the parties. The Chair’s examination occupies 33 pages in the transcript. At several places the Board leads the witness with questions that appear to favour the witness’s version of the October 3 meeting and the recommendation she had made not to support an adoption placement with the C.s. The Chair read her the relevant portion of her report and then asked:
Q 2050. Are you still of the same opinion as when you wrote this paragraph?
A. Yes.
Q 2051. You’re adamant that on October 3rd you were informed at a meeting at the Agency that the [C.s] were approved and that the placement would be taking place under the two conditions listed?
A. Correct.
Q 2056. So what was your understanding of what was going to happen when you came out of that meeting on October 3rd?
A. I understood that the Agency was going to proceed with placing [C.R.] on adoption probation and that they would approve the family –
(pp. 3357-59, Vol. 17)
[109] The Chair also questioned Ms. B. about Mr. C.:
Q 2074. Okay. How about [Mr. C.’s] mental health?
Q 2075. Yes? The anger management concern, what was the concern?
Q 2091. Did you have any concerns about the effect on [C.R.] of anger outbursts?
Q 2102. Any other concerns with regards to conflict in the home?
Q 2105. Any other concern regarding conflicts in the home?
Q 2108. And given the history of domestic violence including physical violence and other more recent incidents of verbal conflict in the home, how does that raise concern for Mr. and Mrs. [C.’s] ability to care for [C.R]?
Q 2119. So, having taken these four areas of concern, you reached the conclusion that it was your opinion that it would not be a placement for [C.R.] that you would approve. Is that correct?
Q 2120. Do you still maintain that position today?
(pp. 3363-64, 3367, 3370-72, 3375-76, Vol. 17)
[110] Not only did the Chair lead the Board’s witness through an examination in chief, in its Reasons the Board did not refer to significant admissions obtained by Mr. Stewart’s cross- examination of Ms. B. This was Ms. B.’s first SAFE report. She was in her probationary period at the time. She sought guidance from her supervisor and from Ms. M. because of their expertise. Very importantly, her evidence was that she had not mitigated historical facts because her understanding then had been that historical facts should not be mitigated—Ms. B. was aware at the time of ongoing discussion in the Agency about whether to mitigate history or not, but did not clarify with her supervisor whether she should in this case. Oddly, despite this testimony it appears she may have mitigated some historical factors. She admitted that now, historical facts are mitigated.
[111] The issue of mitigation of historical facts was a fundamentally important one to the Society’s case. Ms. B.’s ratings of historical factors were higher than those by the worker who had completed the previous report on this family. Ms. B. agrees at Q 2532 that these elevated scores were an influence on her conclusion not to support the C.s’ plan. Mr. Stewart wanted to examine Ms. M. with respect to why she chose to mitigate many of the areas that Ms. B. did not. He submitted to the Board this was necessary so that the Board would not be left with an incomplete explanation as to why Ms. M. came to the conclusion that the C.s’ home study should be approved. The Board would not allow this line of questioning, ruling that Ms. M.’s testimony as to how she and her supervisor mitigated Ms. M.’s own ratings of the C.s, pursuant to the normal SAFE assessment process, was enough (pp. 2950-54, Vol. 15).
[112] The Board found that Ms. B. could explain the weight she attributed to historical events in her analysis, but it did not address the issue of whether the approach she took to not mitigate historical information was the correct or appropriate one. As stated by its counsel this issue was of vital importance to the Society’s case.
[113] Ms. B. was cross-examined about each of her specific concerns about the C. home and made a number of very significant admissions to which the Board did not refer in its Reasons. First, she acknowledged all of the incidents of domestic violence reported to her stemmed from the mid-1980’s to the early 1990’s: about 24 years earlier. She agreed both spouses were open and forthcoming on this issue, and that there was no current concern in this regard. She had no current concerns with respect to Mr. C.’s alcohol use.
[114] Second, with respect to current domestic conflict in the home which was in the form of verbal “heated arguments”, Ms. C. told her this was infrequent. Ms. B. did not ask her what she meant by that. She was told about a single argument between Mr. C. and their adult son whilst installing a patio door. Ms. B. agreed it would be important to know, if there were arguments, how often the child would have been exposed to them, but she had not asked this question.
[115] Ms. B. had two concerns about Mr. C.’s physical health. The first mentioned was his back. She agreed no incident had been described to her indicative of his back impacting his ability to care for the child, except one comment he himself made to her that he had to force himself up that morning, because of his back. The second physical health concern was his cardiac history. Ms. B. had not been able to speak to his cardiologist. The worker who had done the previous report on the C.s had a letter from the cardiologist saying Mr. C. was healthy enough to parent. Since that letter, the only related change Ms. B. was aware of was that he now had an implantable defibrillator but she was unable to explain how that would impact his ability to care for the child.
[116] On the important issue of mental health, Ms. B. acknowledged the information she received was that Ms. C. had made remarkable progress and that her anxiety/depression is managed well. But she testified she was concerned they both continued to take “cocktails of medication to address their mental health issues”. When challenged she could not identify more than two medications for mental health, and then agreed it was fair to say the C.s have very limited medication for mental health. She had no medical information establishing either one of them had mental health challenges that would impact their ability to parent C.R. in a manner consistent with his best interests.
[117] Ms. B. had also listed as one of her concerns that “Mr. C. sometimes forgets to take his medications.” She admitted she did not know the frequency of this, because she had not asked. She also agreed it was a concern that would be relatively easily addressed, and that she did not receive any specific medical information about how this might impact his care of the child.
[118] The Board did not consider these factual admissions in its Reasons.
[119] The Board rejected Ms. M.’s SAFE assessment of the V.D.s, calling it “an indictment of the [V.D.s] seen through the filter of the Society’s conclusions related to [the child’s removal from their home and the closure of their foster home]” (para. 93). Here again the Board did not refer to many of the points raised by Ms. M. such as:
• The past history of the V.D.s with other foster children;
• The V.D.s’ seven year old son telling the assessor he hated the CAS;
• Ms. V.D. advising that the CAS had kidnapped C.R. from them;
• Ms. V.D.’s report of having dreams or visions of C.R. being in distress in the C.s’ home;
• The V.D.s being unable to express any clear motivation for wanting to adopt C.R.;
• Ms. V.D. accusing the Society workers of being untruthful;
• The V.D.s proposing that that their 17 year old son should be apprehended and brought into care, as a viable plan to have him move in with the C.s to ensure C.R. was safe.
[120] The Board was comparatively generous with the V.D.s in its consideration of the negative points raised by Ms. M. that it did address. The email Ms. V.D. sent on May 5, 2014 was described as “a heartfelt plea to be understood”, an explanation “of the foundation of her opinions” (paras. 101 and 103), not as demonstrating an inflated sense of her own medical knowledge as the Society had submitted. The email includes comments such as: “Please remember that I have been a practising Registered Nurse myself for 16 years … trying to educate me on what his regime should be is quite insulting.”; “It is common knowledge to Educated professionals that children who are premature have difficulty feeding…”; “I don’t think you realize [C.R.] was sent to us because we are a medical family…”; “I’m qualified to teach in the medical profession.”; and “As [his] primary caregiver and medical caregiver I believe…”.
[121] Similarly the Board accepted Ms. V.D.’s explanation that when she placed 13 calls to the neonatal unit between May 22 and October 2014, she was calling to give the hospital information about C.R. and not to request information about him, which would have been improper. C.R. had not lived with the V.D.s since the end of May, perhaps calling into question what information about him she would have to share.
[122] Ms. M. also described an incident when the V.D.s had attended the local hospital at the behest of a pastor of parents whose infant was likely to be apprehended. They had held themselves out to the hospital staff as potential foster parents for the child, at a time when they knew they were no longer foster parents. Ms. V.D. acknowledged she had sought information from a nurse, which the nurse declined to give her. The Board found “[t]he issue of being potential foster parents for the child in question was not the primary purpose of the visit as it unfolded” (para. 111).
[123] The Board did not demonstrate in its Reasons that it conducted a fair and balanced consideration of the testimony and positions of each party in relation to the SAFE Home Study assessments.
Waiver
[124] The Board submits that the Society and the C.s should be taken as having waived any entitlement to allege reasonable apprehension of bias other than in relation to the Board’s questioning of Ms. S.D. because further objections were not made during the hearing. The Board refers to case law that allegations of bias should first be put to the tribunal so that it can put its position on record and provide a ruling, before a court is asked to intervene.
[125] In my view, while it would have been desirable for counsel to object contemporaneously to questions thought inappropriate, doing so would not likely have improved the record before the Divisional Court in this case. The objections relating to inappropriate questioning by the Board raised for the first time in this Court are of the same nature as those that were raised before the Board. One may reasonably conclude that the Board would have taken the same position it did take in respect of Ms. S.D.’s testimony. That position is on the record in the Reasons for dismissing the recusal motion.
[126] Nor do I conclude this is a tactical or strategic effort to obtain a new hearing following an unfavourable outcome. At the recusal motion counsel took the position that the issue should be addressed right away to avoid having to repeat a lengthy hearing. The Board undertook to provide written reasons for its ruling, which were not forthcoming until after the hearing had concluded. Moreover, there comes a point where counsel risks further alienating the Board by repeating their concerns, to the detriment of their client. That this risk may have outweighed the potential return in this case is clear from the Chair’s comments at p. 1118, Vol. 7 of the Transcript:
MR. STEWART: Thank you, Madam Chair. And I just want it reflected for the record, I was not asking this witness anything that would require expert evidence or an opinion.
THE CHAIR: Okay. I am going to ask the witness to go out of the room for an instant, please.
---The witness leaves the room.
THE CHAIR: Mr. Stewart?
MR. STEWART: Yes.
THE CHAIR: I want you to be aware that I will not tolerate today or the next day your talking to the record as you have been doing on a number of occasions and did just now. You will make your objections or your submissions on the Applicant’s objections. Once a ruling has been made, you will proceed on that ruling. Thank you. …
[127] Overall, I conclude it is in the interests of the administration of justice not to imply waiver in the circumstances of this case.
Conclusion and Remedy
[128] I have concluded that the extremely high threshold required to support a finding of reasonable apprehension of bias has been established. The objective of ensuring not only the reality but also the appearance of a fair adjudicative process was not met. The cumulative impact of the repeated forays by the Chair into the fray created the appearance that she had aligned herself with the V.D.s while the hearing was in process. No matter how well intentioned her interventions, this created the appearance that she was not impartial as between the parties. These were not isolated occurrences. Uneven treatment of witnesses, overlooking evidence favourable to the Society and the C.s, lengthy interventions in questioning, cross-examination of key witnesses, and challenging witnesses as to their testimony occurred throughout the hearing. In my view an informed person would more likely than not conclude that the decision maker would, and here the submission is unconsciously, not decide the case fairly.
[129] The usual remedy consequent to a finding of reasonable apprehension of bias is a new hearing before a newly constituted panel. However in Clayson-Martin the Court of Appeal took a modified approach more in keeping with the children’s interests in having the matter disposed of quickly and based on their current circumstances. The Court ordered a new trial but directed the focus of the trial and specifically excluded from its scope events that had occurred in 2010 on which the first trial had largely focussed. I note in particular the observations of the Court of Appeal at paras. 150 and 152:
150 What is in the present best interests of these children is for their parents and the court to focus on a plan that reflects the children’s current needs and circumstances.
152 I would order a new hearing ... However, that new hearing will not retry or decide the events of December 23, 2010 for the reasons expressed above in paragraphs 143 to 150. Given the independent and un-contradicted expert evidence in this case, to once again retry the events of that day for the purpose of determining custody and access is simply not in the children's best interests.
[130] This is a useful approach. C.R. is now almost two and one-half years of age and has resided in the C. foster home from May 2014 until at least the date of the decision. He appears to have had very little contact with the V.D.s over the intervening time. These are different circumstances than existed in the fall of 2014 when the applications were made. The best interests of a child and the circumstances of prospective adoptive parents are dynamic and susceptible to change over time. Accordingly a newly constituted panel of the Board shall be convened to decide, in accordance with ss. 136(2) and 144(11) whether to rescind or confirm the Society’s decisions by focusing on the current circumstances of the child, the current best interests of the child, and the current abilities of the prospective adoptive parents to meet them, but not to re-try the events leading to the removal of the child from the V.D.s’ home and his placement with the C.s. It is not in the child’s best interests to re-try those events.
Were the Board’s Decisions Reasonable?
[131] Although not necessary to the outcome of these applications, the misapprehensions of evidence and the uneven treatment of the evidence respecting the two families outlined in these reasons would also have rendered the Board’s decisions unreasonable. Additionally the approach the Board took to some issues in the proceedings before it may also have supported a conclusion that its decisions were unreasonable.
[132] The Board found it had jurisdiction to hear the V.D.s’ s. 144 application without specific reference to s. 144(4) and despite the fact that the child had been placed for adoption with the C.s before the V.D.s’ application was filed. Instead the Board based its jurisdiction on what it described at para. 1 as the V.D.s’ “clearly stated intention to adopt the child and [the fact that they] were never provided with the statutory notice of refusal.”
[133] The CFSA, s. 144(4) provides as follows:
(4) If a society receives an application to adopt a child and, at the time of the application, the child had been placed for adoption with another person, the applicant is not entitled to a review of the society’s decision to refuse the application. 2006, c. 5, s. 36.
[134] After the application was filed the Society challenged the Board’s jurisdiction, but, for reasons not known to this Court, withdrew its challenge at the pre-hearing stage. At the judicial review hearing this Court raised the question of the Board’s jurisdiction. The Society submitted it should be estopped from reversing its position previously taken, to the prejudice of the opposing parties. Accordingly, we declined to decide the case on the basis that the Board did not have jurisdiction to hear the V.D.s’ application.
[135] That said, on the bare facts that the adoption placement with the C.s was made on October 22 and that the V.D.s did not apply to adopt this child until the next day, the Board would not have had jurisdiction to hear the V.D.s’ s. 144 application. The child was not legally free for adoption until August 16, and we were not referred to any evidence of the V.D.s advancing a request to adopt him after that date and before October 22. The adoption process requires bright lines. If a child has already been placed for adoption, a general intention formed prior to the child being legally free for adoption is not sufficient to defeat the clear intention of s. 144(4).
[136] In addressing the two s. 144 applications before it, the Board’s duty was to confirm or rescind two specific decisions made by the Society in November 2014. The Board’s review of those decisions ought to have been framed by the child’s best interests in November 2014 and through to the date of the decision, not at some earlier point in time. Instead, perhaps because of the joinder of the V.D.s’ s. 68 application for a review of the Society’s decision to close their home as a foster home on July 3, much of the Board’s inquiry focused on the care provided to the child up to that date, and the fairness or correctness of the Society’s decisions taken in May and June 2014 vis-à-vis the V.D.s as foster parents.
[137] The Board refers to Family, Youth and Child Services of Muskoka v. D.M., [2010] O.J. No. 5085 (Div. Ct.) (“Muskoka”) to explain its approach. But by focusing so significantly on whether it had been in the child’s best interests to remove him from the V.D.s’ home in May 2014, the Board may have gone beyond Muskoka. The Board engaged in a lengthy historical review of the child’s condition and needs. At para. 22 of its Reasons the Board explains: “It is important that all of the other evidence be viewed from the perspective of what the child’s best interests were at various points in time and particularly at critical decision points given this history.” And in para. 150 of the Reasons, the Board finds it was not in the child’s best interests to be removed from the home of the V.D.s in May 2014; rather, the Board implies, the Society should have left him there and worked with the V.D.s to address its concerns.
[138] The Court in Muskoka notes at paras. 21, 22 and 27 that the authority of the Board to determine what action is in the child’s best interests is confined by the decision under review; the Board does not have parens patriae jurisdiction to determine a child’s best interests in relation to any or every action taken by a Society.
[139] In contrast to its lengthy review of the child’s history, the Board made far fewer direct references to his current needs. From a review of the Reasons one may infer that the child’s physical and medical care is satisfactory in his current placement. The Board did note the child had formed strong and positive emotional bonds in both foster homes, that this boded well for future attachments, and was a credit to both sets of foster parents. The Board does not appear to have gone on to sufficiently address the specific question of how severing the child’s current attachment with the C.s would impact him, especially since this would be the second such disruption for the child and occur when he had been with the C.s since May 2014 until the decision at the end of August 2015. There was also evidence, not referred to, of the attachment between the C.s and C.R. and his medical progress and positive development while with them.
[140] The child’s current best interests, his current needs, including his emotional ones, and the abilities of each of the prospective adoptive families to meet his best interests, now and in the future, ought to have been the primary focus of the Board in its review of the two Society decisions that were before it. That was not the focus of the Board, and a further reason why the decision is unreasonable.
Disposition and Costs
[141] For these reasons the judicial review applications are allowed, and the decisions of the Board are set aside. A newly constituted panel of the CFS Review Board shall be convened to decide whether to rescind or confirm the Society’s decisions by focusing only on the current circumstances of C.R., his current best interests, and the current abilities of the prospective adoptive parents to meet them.
[142] The Board does not seek costs. The other parties may deliver written costs submissions to the Divisional Court office in Ottawa, not to exceed 5 pages in length, and to include a Bill of Costs and any relevant offers to settle that may have been exchanged. These submissions shall be exchanged within 21 days of the release of this decision. The Society and the C.s may exercise a brief right of reply, if necessary, within a further seven days.
V.J. Mackinnon J.
Kruzick J.
Swinton J.
Released: January 20, 2016
CITATION: Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry v. S.V.D., 2016 ONSC 350
DIVISIONAL COURT FILE NO.: 15-DC-2144/15- 2154
DATE: 20160120
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Kruzick, Swinton, and V.J. Mackinnon JJ.
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
BETWEEN:
The Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry
AND
S.V.D. and M.V.D., C.C. and G.C., and Child and Family Services Review Board
AND BETWEEN:
C.C. and G.C.
AND
S.V.D. and M. V.D., The Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry, and Child and Family Services Review Board
REASONS FOR JUDGMENT
V.J. Mackinnon J.
Released: January 20, 2016