Children's Aid Society of the Districts of Sudbury and Manitoulin v. Ministry of Children and Youth Services
[Indexed as: Children's Aid Society of the Districts of Sudbury and Manitoulin v. Ontario (Ministry of Children and Youth Services)]
75 O.R. (3d) 431
[2005] O.J. No. 2446
Sudbury Court File No. DV 677/05
Ontario Superior Court of Justice
Divisional Court
Gravely, Matlow and Kiteley JJ.
May 11, 2005
Administrative law -- Judicial review -- Statutory power of decision -- Director making decision pursuant to s. 144 of Child and Family Services Act to review decision of Children's Aid Society refusing to place children with members of extended family for adoption -- Decision to conduct review not constituting decision made pursuant to statutory power of decision -- Court quashing Society's application for judicial review of Director's decision for want of jurisdiction -- Child and Family Services Act, R.S.O. 1990, c. C.11, s. 144 -- Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 2.
Family law -- Children -- Child welfare -- Director making decision pursuant to s. 144 of Child and Family Services Act to review decision of Children's Aid Society refusing to place children with members of extended family for adoption -- Decision to conduct review not constituting decision made pursuant to statutory power of decision -- Court quashing Society's application for judicial review of Director's decision [page432] for want of jurisdiction -- Alternatively, Director having broad discretion under s. 144 and decision not unreasonable -- Child and Family Services Act, R.S.O. 1990, c. C.11, s. 144 -- Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 2.
The children were Crown wards and resided with their prospective adoptive parents, where they had been placed by the applicant for adoption. Certain members of the children's extended family expressed a belated interest in adopting them. The applicant refused to place the children with those family members for adoption. The Director made a decision pursuant to s. 144 of the Child and Family Services Act to review the applicant's decision. The applicant brought an application for judicial review of the Director's decision.
Held, the application should be quashed.
Per Matlow J. (Gravely J. concurring): The Director was entitled to invoke s. 144 and to decide to conduct the review contemplated by that section. Section 144 confers a very broad discretion on a Director in determining when to carry out his supervisory function under the Act by conducting a review. The Director's decision to conduct a review was not a decision made pursuant to a statutory power of decision as defined in s. 2 of the Judicial Review Procedure Act, c. J.1. It did not decide or prescribe the rights of the applicant or, indeed, of anyone. Its only effect was to delay the adoption of the children. The court did not have jurisdiction to intervene. Alternatively, if the court did have jurisdiction, the standard of review of the Director's decision was that of reasonableness simpliciter, and the Director's decision to conduct a review met that standard.
Per Kiteley J. (dissenting): The Director's decision was made pursuant to a statutory power of decision. The decision decided the rights of the children in a temporary, albeit important, way. Children who are the subject of an order of Crown wardship without access have a right to a permanent stable family relationship as soon as possible. The review in this case would take from six to 14 months to complete. The decision to review was subject to the Judicial Review Procedure Act. The standard of review was that of reasonableness. The Director was under an obligation to give reasons for the decision to conduct a review. The record did not include any reasons. Counsel for the Ministry took the position that the Director made the decision to conduct a review because members of the extended family asked for it. That was not a reasonable basis upon which to exercise a statutory power of decision. The Director's decision was not reasonable.
APPLICATION for a judicial review of the decision of the Director to review a decision refusing to place children with family members for adoption.
Statutes referred to Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 1 [as am.], 140, 143-145 Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 1, 2 [as am.]
Réjean Parisé, for applicant. Heather Mackay, for respondent.
[1] Endorsement by MATLOW J. (GRAVELY J. concurring): -- I would quash this application for judicial review for want of [page433] jurisdiction or, in the alternative dismiss it on its merits. No costs are sought by either party and none are awarded.
[2] By this application the applicant seeks to set aside a decision made by a Director pursuant to s. 144 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the "Act") to review the decision of the applicant refusing to place the children who are the subject of this application with certain members of their extended family (the "extended family") for adoption. The children are Crown wards and presently reside in the homes of their adoptive parents where they have been placed by the applicant for adoption.
[3] Section 144 of the Act reads as follows;
144(1) Where,
(a) a society makes a decision refusing to place a child with a person, including a foster parent who is caring for the child, for adoption; or
(b) a society or licensee makes a decision to remove a child who has been placed with a person for adoption,
a Director may review the decision of the society or licensee and may,
(c) confirm the decision, giving written reasons for doing so; or
(d) rescind the decision and do anything further that the society or licensee may do under this Part with respect to the child's placement.
[4] The decision to review was made following a late expression of interest by the extended family, after a lengthy period of apparently showing no such interest, to have the children placed with them for adoption.
[5] The application made by the extended family for the adoption of the children was not made in accordance with the usual form used for that purpose. Nevertheless, as no form is prescribed for that purpose, the imperfectly constituted application submitted on behalf of the extended family was treated by the Director as an application in compliance with the Act and I agree with that approach. In proceedings under the Act, the "best interests, protection and well being of children", in the language of s. 1, must be the paramount objective and substance must be permitted to take priority over form. I am also satisfied that the applicant refused to place the children with the extended family, thereby satisfying the other precondition for the conduct of a review set out in the Act.
[6] In the context of the facts of this case, it is my view that the Director was entitled to invoke s. 144 and decide to conduct the review contemplated by that section. I respectfully disagree with the submission of counsel for the applicant that s. 144 was [page434] inapplicable to the facts of this case and that only s. 145 of the Act, which expressly applies to the conduct of reviews with respect to children who have been placed for adoption but with respect to whom no order for adoption has been made, and s. 143 apply. In my view, these sections are not mutually exclusive and allow for some overlapping in appropriate cases.
[7] In contrast with s. 145, which makes it mandatory that a Director conduct a review if the preconditions of that section are satisfied, s. 144 confers a discretion on a Director whether or not to conduct a review. No criteria are set out in the Act to provide guidance regarding the circumstances under which a Director ought to conduct a review. It follows that a Director has a very broad discretion when to carry out his supervisory function under the Act by conducting a review. Having regard to the importance of ensuring that the best available options for the placement of the children were pursued in a situation of difficult communications between the Director and the applicant, it is not surprising that the Director felt the need to delve further into the facts of the case by means of conducting a review.
[8] The only possible negative consequence of the Director's decision that might occur is some delay in completing the adoption process for the children. To address this concern, counsel for the respondent has assured us that the Director is sensitive to the need to finalize the adoption as soon as reasonably possible and has undertaken to complete the review within several months. On the other hand, there are many benefits that could reasonably be expected to result from a review, the most important of which would be the greater likelihood that the ultimate decision regarding the placement of the children would be based on a clear determination of all of the relevant facts and a careful consideration of all of the relevant factors necessary to secure a result that advances the objectives of the Act. As well, it is more likely that members of both the adoptive families and the extended family would obtain the assurance that the children's and their respective needs and concerns would be properly addressed a nd taken into account without undue haste in the remaining part of the process leading to the adoption of the children. It is clear, in my view, that the likely benefits of the Director's decision far exceed the relatively minor negative consequence of a short delay.
[9] Although the record before us does not include any explicit reasons for the Director's decision, his likely reasons are readily apparent from the evidence of the surrounding circumstances of this adoption proceeding.
[10] I turn now to what is ordinarily the first issue to be determined on a judicial review application, namely, the jurisdiction of [page435] this court to intervene. That jurisdiction is entirely statutory and is set out in s. 2 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the "JRP Act"). It is the position of the applicant that the decision of the Director under attack in this application is a decision made pursuant to a "statutory power of decision" as defined in s. 1 of the JRP Act and is, therefore, properly reviewable in this application. That definition reads as follows:
"statutory power of decision" means a power or right conferred by or under a statute to make a decision deciding or prescribing,
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,
and includes the powers of an inferior court.
[11] In my view, the Director's decision to conduct a review is not a decision made pursuant to a statutory power of decision. The Director's decision did not decide or prescribe the rights of the applicant or, indeed, of anyone. Its only effect was to delay the adoption of the children and that result does not bring it within the scope of the definition.
[12] However, on the assumption that this court does have jurisdiction to intervene, it is my view that it should not. The Act does not confer a right of appeal from the Director's decision. Nor does it contain a privative clause. The Director, whose decision is under attack, is nevertheless entitled to deference with respect to matters of discretion falling within the scope of his expertise in carrying out his duties pursuant to his "home statute". His decision to conduct a review was made in furtherance of the objectives of the Act with respect to children and, for that reason too, deserves deference. Accordingly, the standard of review that is applicable to his decision would be no less than that of reasonableness simpliciter.
[13] For the reasons set out above, I am satisfied that the Director's decision to conduct a review meets that standard.
[14] KITELEY J. (dissenting): -- I have had the benefit of reading the reasons for decision of Matlow J. with which I respectfully disagree.
Authority of the Director to Conduct a Review
[15] The Ministry has given notice that a Director will be appointed to conduct a review of the decision of the Children's [page436] Aid Society. The Ministry relied on s. 144 of the Child and Family Services Act ["CFSA"] which is as follows:
144(1) Where,
(a) a society makes a decision refusing to place a child with a person, including a foster parent who is caring for the child, for adoption; or
(b) a society or licensee makes a decision to remove a child who has been placed with a person for adoption,
a Director may review the decision of the society or licensee and may,
(c) confirm the decision, giving written reasons for doing so; or
(d) rescind the decision and do anything further that the society or licensee may do under this Part with respect to the child's placement.
(2) A Director who reviews a decision under subsection (1) shall take into account the importance of continuity in the child's care.
[16] Section 144 does not identify the author of the decision to conduct the review. That section does indicate that a Director will conduct the review once the threshold decision has been made. The record indicates that "the Ministry" made the decision to conduct the review. The correspondence was signed by the Regional Program Manager for the Northern Region of the Ministry of Children and Youth Services. The identity of the Director who will conduct the review is not yet known.
[17] The record was prepared and submissions were made on the basis that it was "the Director" who had decided to conduct the review and that the court should look to s. 144 for the authority to do so. While I have some reservations about that interpretation of s. 144, I will take the same approach.
[18] Lalande J. of the Ontario Court of Justice found the five children in need of protection and made an order of Crown wardship without access. On August 18, 2004, the CAS placed four of the children in prospective adoptive homes. On September 13, 2004, the CAS placed the fifth child in a prospective adoptive home. By September 13, 2004, all of the children were "placed for adoption". Once children are "placed for adoption", certain events and rights are triggered. For example, after the six-month probationary period, the prospective adoptive parents may bring an application to the court for adoption. The children can anticipate that permanent decisions will be made.
[19] Counsel for the CAS argued s. 144 does not apply where the children have been "placed for adoption", that the Director has no right to decide to conduct a review and that the Director should be prohibited from conducting the review. He distinguished the [page437] Director's review under s. 145 that is available after the child has been placed for adoption and the person with whom the child is placed asks that the child be removed or the Society proposes to remove the child. In those cases of placement breakdown, the Director may conduct a review. Counsel also distinguished s. 143 which terminates access and prohibits interference with a child who has been "placed for adoption". He argued that since s. 144 does not reference a review after the children are placed for adoption, that it does not apply.
[20] Counsel for the Ministry pointed out that in s. 144(1) (b) the review might be triggered if a Society makes a decision to remove a child who has been placed for adoption, and hence the section must have reference to post-placement decisions. Furthermore, counsel argued that on a plain meaning of s. 144, since it didn't restrict the Director's review to pre-placement decisions, that the review must apply equally to pre- and post-placement decisions because the overall supervisory power of the Director to oversee the placement decisions of the Societies must be respected.
[21] I agree with counsel for the CAS. "Placement for adoption" is a key event in the lives of children who are crown wards. If the Director intended to maintain post-placement jurisdiction, the legislation should so indicate. Counsel for the Ministry took comfort from the inclusion of a post- placement review in the event of a decision by the CAS to remove a child. I draw the opposite conclusion. Post-placement decisions are reviewable by the Director under s. 144(1)(b) when there has been a placement breakdown. The supervisory power of the Ministry is needed in order to investigate what went wrong and how the child's needs were not met in the placement decision made by the CAS. That does not mean that decisions to refuse to place a child are reviewable both before and after placement.
[22] I find that s. 144 does not give authority to the Director to conduct a review in these circumstances. For that reason, I would allow the application and prohibit the Director from conducting the review.
Application of s. 144
[23] Since it was argued in the alternative, I consider the matter as if s. 144 did apply. Counsel for the Ministry agreed that there are two triggering events before the Director may invoke s. 144. There must be an application for a child to be placed with "a person". And the CAS must "refuse" that application.
[24] In a letter dated September 13, 2004, the paternal grandfather wrote to his counsel as follows: [page438]
We are writing in regards to the adoption of C, T, C, B, D and R. We would like to adopt these children into our families. We request that they be placed in our homes in the following manner:
Grandparents: C and T
Aunt and uncle S: B
Aunt D: C and R
Aunt and uncle D: D
If you have any questions or require further information from us, please contact [grandfather].
[25] That letter refers to a sixth child, R, but the protection application with respect to that child is still before the Ontario Court of Justice.
[26] Counsel for the paternal grandfather sent a letter to the CAS dated October 31, 2004 indicating as follows:
I have been advised by [grandfather] that he, and other members of his family, would be willing to adopt all of the five D children that are now crown wards. Does the Society have an interest in exploring that possibility? Have any (and which ones) of the children been placed for adoption? What is the present status of each child?
[27] Other correspondence was exchanged. However, for purposes of this point, the next step was a letter from counsel for the CAS to the lawyer for the grandfather dated December 10, 2004 which said as follows:
Your correspondence of October 31, 2004 speaks to the family of D seeking to adopt the D children. The first five children, who are Crown Wards, were placed for adoption prior to your correspondence and accordingly are not available for consideration. ...
[28] The Ministry took the position that the first two letters constitute the application to adopt and the last letter constitutes the decision by the CAS refusing to place the children with the applicants. The CAS took the position that there was neither an application nor a refusal and consequently, the events which would trigger a review under s. 144 did not occur.
[29] Counsel for the CAS advised that there is a formal application document in use by the CAS. It is common ground that a formal application was not submitted. For purposes of these reasons, I do not consider it relevant that a formal application was not made. I find that the first two letters constituted a request by the grandfather that the five children be placed for adoption with members of the extended family.
[30] Even accepting that, there is another concern with the request. Grandfather made the request on behalf of himself and [page439] his wife and five adult members of the extended family. None of the other adults confirmed in writing that they wanted to adopt. In the unusual circumstances of this case, I would overlook that important deficiency and find that there had been an application.
[31] The CAS took the position that they did not refuse the application because it had never been made. Having found that an application had been made, I find that the letter dated December 10, 2004 was a refusal to place the children for adoption.
Exercise of Discretion by the Director
[32] That brings me to the next step of the Director exercising his/her discretion under s. 144. The Director decided to conduct a review. There is no written communication from the Ministry to the CAS reporting on that decision although it is clear that the decision was communicated orally. The Ministry did send letters to all seven adults in the extended family who had been identified in the first letter above. In each letter the Ministry indicated that the review would be conducted under s. 144.
[33] The statute does not provide any criteria on which the discretion is to be exercised. It is common ground that the discretion must be exercised within the purposes of the Act, to which reference will be made below.
Is the decision by the Director subject to judicial review?
[34] The CAS launched this judicial review application. The preliminary issue is whether the decision is reviewable. The question is whether the decision by the Director is a statutory power of decision. That gives rise to two issues: was the decision made by or under a statute and did it decide or prescribe rights, powers, privileges, immunities, duties or liabilities of any person.
[35] The decision was made pursuant to s. 144. Counsel for the Ministry argued however that the decision did not decide or prescribe rights of any person. She took the position that the impact of the decision to review was simply to delay the adoption of the children.
[36] I agree with counsel for the CAS that the decision by the Director to review the refusal decided the rights of the children in a temporary, albeit important way. The context is important. These children were apprehended in March 2000 and placed in care. In July 2001, the CAS amended the application from Society wardship to Crown wardship. The hearing commenced in September 2001 and took 16 days until April 17, 2002. The decision of Justice Lalande of July 26, 2002 found or confirmed that the children were in need of protection. The disposition phase [page440] began in October 2002 and carried on for a total of 11 days until April 25, 2003. The decision of Justice Lalande on June 12, 2003 provided that the children become Crown wards without access. The biological parents appealed. The appeal was heard on August 3, 2004 and was dismissed. As indicated above, four of the children were placed for adoption on August 18th and the other child on September 13th.
[37] The children were born as follows: December 15, 1995, November 15, 1996, October 21, 1997, November 24, 1999 and July 20, 2001. Four were apprehended in March 2000 at which time they were aged four years three months; three years four months; two years five months; and five months. The record does not specify when the last child was apprehended but I will presume at or shortly after birth. At this point, these children have spent more of their short lives in care than with the biological parents.
[38] The paramount purpose of the CFSA is "to promote the best interest, protection and well being of children". The additional purposes included the recognition that "children's services should be provided in a manner that respects children's needs for continuity of care and for stable family relationships". According to s. 140, the CAS "shall make all reasonable efforts to secure the adoption" of every child who has been made a Crown ward although the CAS is prohibited from placing a child for adoption until disposition of the appeals. The CFSA does not specify that the children have a right to be adopted. Rather, it specifies that the CAS has an obligation to make all reasonable efforts to secure the adoption. I find that children who are the subject of an order of Crown wardship without access have a right to a permanent stable family relationship as soon as possible.
[39] Within days and weeks of the appeal being dismissed in August 2004, the children were placed for adoption. The six- month probationary period for the prospective adoptive placements ended on February 18, 2005 for four of the children and on March 13 for the last child. But for the review by the Director, the application to the court for adoption could take place immediately.
[40] It is common ground that the review could take eight to 14 months based on previous experience. Counsel for the Ministry indicated that the Ministry understands the importance of resolving the matter as soon as possible and hypothesized that it might be done in a three-to six-month range.
[41] In the factum, counsel for the Ministry indicated that it intends to review "all substantive issues relating to the decision [page441] of the Society to place the children where they are currently placed, as well as what occurred during the trial and appeal". I consider it unlikely that a review of that scope could be conducted in that three-to-six month time frame. For purposes of these reasons, I will assume that the review could be completed in a range of six to 14 months.
[42] I find that the review which will interrupt the adoption proceedings for six to 14 months is a decision that affects the rights of these children. The decision to conduct the review has the effect of deciding that these children will be precluded from being adopted for what will be, in the context of the lives of these children, a long time. I therefore find that the decision to review is subject to the Judicial Review Procedure Act.
What is the standard of review?
[43] Counsel for the CAS argued that the standard was reasonableness while counsel for the Ministry argued that the standard was patently unreasonable.
[44] There is no privative clause which suggests less deference. Counsel for the Ministry argued that the expertise of the decision-maker ought to be respected. I agree with counsel for the Ministry when it comes to the review itself. The CFSA is the home statute of the Director and certainly the Director has considerable experience in matters involving children in need of protection. However, I do not accept that the expertise involved in making a decision whether or not to conduct a review is such that deference is appropriate. The decision to conduct a review (as opposed to the review itself) did not require a comprehensive appreciation of the facts of the case nor did it involve the application or interpretation of definitive legal rules. I conclude that the standard of review is reasonableness.
Was the decision of the Director reasonable?
[45] Counsel for the Ministry argued that the Director had no obligation to give reasons for the decision to conduct the review. I do not accept that position. If a statutory power of decision is subject to judicial review on any standard, the only way in which the reviewing tribunal can decide whether that standard has been met is if the reasons upon which the decision-maker proceeded are articulated at least summarily.
[46] I endeavoured to find some reasons. The record does not indicate why the Director made the decision. Counsel for the Ministry indicated that since the Ministry took the position that it need not give reasons, the record did not include any reasons. [page442] Based on the record before us, counsel for the Ministry took the position that the Director made the decision to conduct a review because members of the extended family asked for it.
[47] I do not accept that that is a reasonable basis upon which the Director exercises a statutory power of decision. If that were the case, then any time a family asked for a review, a Director would respond affirmatively. The Director would be abdicating responsibility to rejected adoptive families. That cannot be the intention of s. 144. Before ordering a review the Director must have sufficient reasons consistent with the purposes of the CFSA to which reference is made above. Acting simply on the request from the extended family cannot be consistent with the purposes of the CFSA. I find that the decision of the Director was not reasonable. I would prohibit the Director from conducting the review.
Application quashed.